When caring for elderly parents, it is essential to be as well-prepared as possible for a potential decline in their health. When you prepare a health care power of attorney at an early stage, you can do so without urgency, weighing and planning every aspect of their future care when they are still quite able and free to express their wishes.
If you are concerned that your parent’s cognitive functioning might decline and wish to prepare beforehand, or if your aging parent has an illness that may cause loss of consciousness or a rapid loss of cognitive abilities, it is important to arrange a health care power of attorney as soon as possible.
A power of attorney may only be signed by an individual who is over 17, of sound mind and legally competent.
A health care power of attorney must be signed in the presence of a professional (such as a doctor, psychologist, social worker, nurse, lawyer, etc.) who is able to verify the identity of both parties – the one who grants the power of attorney (grantor), and the one who accepts this responsibility (agent). This witness should be someone who has known the person for quite some time.
The witnesses must verify the identities of both parties, and also note that they are signing of their own free will and understand what they are signing. All witnesses must be physically present when the document is signed.
When there is any doubt regarding the patient’s competence to sign the power of attorney, a professional opinion must be obtained.
It is advisable to prepare, in advance, 5-6 copies of the original power of attorney document – as you will be required to place an original document in the patient’s file for every medical procedure.
It is also advisable for the agent and/ or another person who is close to the patient to keep a copy of the document in their own files.
The significance of signing a health care power of attorney
The law states that in order to provide medical care to a person, his or her consent must be obtained. In some situations, however, the patient is unable express his position with regard to the treatment.
The Patients’ Rights Act states that every person may appoint a representative who will be authorized to consent to medical treatments on his behalf. Thus, a person can grant power of attorney to another individual who will be legally allowed to make medical decisions for him if and when the time comes that he is not clear-minded and cannot give informed consent to a treatment. The legal representative acts as an emissary of the patient and must be faithful and obedient to his wishes.
Only the grantor can decide who his representative will be, and in what matters he may act in his place. Only a person in full mental capacity can create a health care power of attorney. In the document, the grantor must specify the circumstances and terms under which the authorized person can agree, in his place, to a medical procedure, diagnosis, skilled nursing care or rehabilitation. A person can also appoint more than one agent.
In special cases, when a power of attorney cannot be formulated in writing, a spoken power of attorney is also admissible. This will be given in the presence of two witnesses. The appointment and testimony must be recorded in writing as early as possible – by the care provider, the witnesses or the patient.
Validity of the health care power of attorney
A special form must be signed: healthcare power of attorney according to section 16 of the Patient’s Rights Law.
The rules of power of attorney only set down a basic framework, requiring the following: the personal details of the grantor and the agent, and the situations or conditions in which the agent can agree to a medical treatment in the patient’s place. Thus, for example, the document may stipulate that the power of attorney is valid for deciding for or against all types of medical treatments or procedures, or only for specific types of treatment.
The grantor may indicate when the power of attorney will expire. Health care power of attorney is not permanent and if it is not put into effect, it will expire 10 years from the day it is signed, or earlier if so indicated. If a grantor appoints several agents, each of them may act independently. In such cases it is advisable to clarify the order of precedence, that is, whose voice dominates when opinions differ, or when one of the agents cannot be reached.
The agent must sign the power of attorney document, and declare that he agrees to act as a representative and understands the conditions and limitations of the authority he has been granted.
In the event that the grantor becomes incompetent, the power of attorney remains valid for over 10 years.
Restrictions in signing the health care power of attorney
The agent may not digress from the terms of the power of attorney agreement, and is not allowed to make decisions beyond the authority granted by the patient. The grantor can cancel the power of attorney whenever he chooses to do so, or according to terms stated in the agreement itself. The grantor can cancel the agreement even after it has been used, in a written statement to all people involved. An agent who has received such a statement of cancelation and still acts as if the power of attorney is in force is breaking the law.
Canceling a power of attorney
- The person granting the power of attorney can cancel it any time he chooses to do so, or according to terms set out when it was first granted.
- A power of attorney expires if it has not been acted upon for 10 years.
For a notice from the General Director of the Ministry of Health on health care power of attorney – click here.
For more information about health care power of attorney – click here.