Activation of Power of Attorney for Health Care

By Roger Thorne J.D.
Durable powers of attorney must be made in writing.

Hand and document at the meeting image by Dmitry Goygel-Sokol from Fotolia.com

A durable power of attorney for health care, also known as a health care proxy, is a kind of advance directive people use to give someone else the legal authority to make health care decisions about the grantor. These legal documents must comply with the laws of your state and can only take effect when you become incapacitated or mentally incompetent and consequently unable to make your own health care decisions. Talk to an attorney if you need legal advice about powers of attorney for health care.

Springing

Powers of attorney for health care generally do not apply until the person who made it, called the principal, falls ill or is otherwise rendered incapable of making health care decisions. For example, a principal can grant someone else health care power of attorney, but the recipient of the decision-making rights, known as the attorney-in-fact, cannot start deciding health care decisions right away. The powers of the attorney-in-fact only take effect if the principal becomes incapacitated. This is generally known as a "springing" power of attorney because it is activated only upon specific conditions.

Validity

Regardless of when the power of attorney grants the attorney-in-fact the right to make decisions on the principal's behalf, all POA documents must be valid, meaning they must comply with the law. Power of attorney laws are state laws, and the validity of a POA depends on whether or not the document meets the state requirements. For example, a POA that is witnessed by two people but not notarized may be valid in one state but invalid in a state that requires notarization.

Durability

Powers of attorney can be differentiated into two general groups: durable and non-durable. Non-durable powers of attorney terminate immediately upon the principal's incapacitation, meaning the powers of the attorney-in-fact are no longer active once the principal becomes sick. Health care powers of attorney, therefore, must be made durable or they are essentially useless. However, depending on the state in which the document is made, the law can assume that all POA are either durable or non-durable. To be certain that the POA is made durable, the principal must ensure the document clearly states the powers of the attorney-in-fact are active even if the principal is incapacitated.

Revocation

A principal can terminate a POA at any time as long as she is still of sound mind. For example, if a principal creates a health care power of attorney and later changes her mind, she can revoke the document at any time and for any reason. Even an oral revocation is valid, meaning the principal can simply inform her physician that she no longer wants to have the health care POA.

About the Author

Roger Thorne is an attorney who began freelance writing in 2003. He has written for publications ranging from "MotorHome" magazine to "Cruising World." Thorne specializes in writing for law firms, Web sites, and professionals. He has a Juris Doctor from the University of Kansas.

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