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Opinion: Execute power of attorney to express health care desires

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In the 1990 landmark case Cruzan v. Missouri Department of Health, the U.S. Supreme Court held that “clear and convincing evidence” of a person’s health care wishes is required to remove a patient from life support. The decision prompted the Missouri legislature to amend its power of attorney law to authorize you to appoint a decision-maker to carry out your health care desires if you cannot express them.

A durable power of attorney will allow another person to act on your behalf even if you become incapacitated. There are several requirements to make a power of attorney “durable.” First, the instrument must state it. Second, the instrument must contain a provision that tracks the wording in the statute, namely: “This is a durable power of attorney and the authority of my attorney-in-fact shall not terminate if I become disabled or incapacitated or in the event of later uncertainty as to whether I am dead or alive.” Finally, you must sign and date the instrument before a notary public.

A primary reason you may wish to have a power of attorney is to allow a decision-maker to withhold or withdraw treatment. The problem in the Cruzan case was that there was no clear and convincing evidence of her treatment desires, and therefore the court would not allow the intravenous feeding tubes to be removed. Your power of attorney must, under Missouri law, expressly state that your decision-maker may withhold or withdraw artificially supplied nutrition and hydration, if you want them to have that right.

You may wish for other procedures to be withheld – such as surgery, CPR, antibiotics, dialysis, use of respirators, chemotherapy and radiation – and these may be listed in the power of attorney as well. Missouri law does not require these treatments to be specifically enumerated, but clarity assists your decision-maker. 

You will appoint one decision-maker, but provide for alternates in the event the person named is unable to act for any reason. You should appoint someone who can act under stress and follow your directives. Often this will be a spouse, followed by children as alternates. Or you may choose to appoint relatives or close friends to carry out your wishes. 

You may feel hesitant to burden someone with the responsibility of making health care decisions for you, but your power of attorney will give them guidance. The instrument will state whether you want hydration and nutrition, and may outline treatment procedures that you do not desire. Most health care directives allow a decision-maker to try a procedure for a period of time, and then to withdraw it if it is not effective. Your decision-maker will feel much more confident acting when they know they are acting in accordance with your wishes.

You also may grant your decision-maker the right to sign authorizations for release of your personal health, medical and financial information – which is otherwise protected from disclosure by the Health Insurance Portability and Accountability Act. This power may avoid the inconvenience and cost of petitioning the probate court for an order to obtain such records.

Although attorneys often prepare durable powers of attorney for health care for clients during estate planning, you also may obtain a free form from most hospitals or download one from the Missouri attorney general’s website, AGO.Mo.gov. Click on “Other Resources,” select “Publications” and scroll down to find the publication called Life Choices.

Stephen Aton is an estate planning attorney and owner of Aton Law Firm. He can be reached at steve@atonlaw.com.

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