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Power of Attorney

Power of attorney


Power of attorney, also known as durable medical power of attorney, is a legal mechanism that empowers a designated person to make medical decisions for a patient should the patient be unable to make the decisions due to incapacitation.


Power of attorney assures that a patient's wishes are acknowledged in the medical setting. Along with other legal documents such as a living will and a do not resuscitate (DNR ) order, the power of attorney designates the agent or person who is legally authorized to act for the patient in the medical setting. All three mechanisms are a part of what is know as advanced medical directives.


The patient's agent is the person appointed by the patient to represent him or her in medical situations where decisions must be made. According to the Patient Self-Determination Act of 1991, patient autonomy is represented in the health care agent. This surrogate, through his/her power of attorney authorization, has all of the rights that the patient has with respect to deciding on medical procedure. These include the rights to refuse treatment, to agree to treatment, or to have treatment withdrawn.

Guided by a living will, which is a document developed in advance that reflects the patient's wishes, the agent acts on behalf of the patient with providers, administrators, and other legal agents. In most states, surrogates can act for the patient on any medical procedure, including a decision to refuse life support procedures such as resuscitation. States differ, however, on whether health agents can invoke a DNR order.

In the difficult times that families experience with a seriously ill or terminally ill family member, health agents play a major role in making decisions and stipulating what the patient's wishes are with respect to his or her medical and/or dying needs. Health agents can work with or without a living will. The crucial feature is that the person having power of attorney is empowered to respond to changes in the patient's health and to make flexible decisions. It is the health agent, rather than the patient, who must be apprised of all medical options, weigh the risk and benefits, and make a decision based on the specific situation.


The person who has the medical power of attorney for a patient is only as good as his or her level of understanding of the patient and level of respect for the patient's wishes. There are some specific steps that can be taken to prepare the health care agent for power of attorney responsibilities. These steps include:

  • The patient must think about medical treatments he or she would or would not like to have in different medical situations such as accidents, acute and life-threatening injuries, nursing home care, etc.
  • If possible, the patient should write down his or her medical wishes and have these developed into a living will.
  • The patient will want to convey these medical wishes to family and friends, as well as the identity of the person who will have power of attorney.
  • Whether a written document is drafted or not, it is important that the patient have discussions with the designated agent so that his or her wishes can be carried out in the concrete situation. Not all elements of the medical decisions required can be known in advance. Hence, it is very important that the health agent knows the patient, knows the patient's wishes and rationale, and understands fully what is of value to the patient. Family and health providers should also be brought into knowledge of the patient's wishes.

Medical decisions likely to be faced in severe health emergencies include options for cardiopulmonary resuscitation (CPR), diagnostic tests, dialysis, administration of drugs, surgery, and organ and tissue use. However, there are also other decisions that can come into play at these crucial medical moments and these may involve the power of family members, traditional and non-traditional, having a say in the decision making and issues of children visitation, etc., that the health agent may have to understand and honor.

Once the initial steps for the advanced instructions are in place, an official medical power of attorney form for the state of residence or health care must be filled out. These may be two different states. It is important to have a medical power of attorney for any and all states in which medical care might be provided.

Normal results

All medical directives, whether the living will, power of attorney, or do not resuscitate order , are respected by all health personnel in whatever medical setting the chosen state stipulates. Usually these include hospitals, emergency rooms, emergency vehicles, and short- or long-term care facilities such as hospice care. Many states also include the home. The medical directives become a part of the patient's medical record and must be honored by any and all health personnel involved in the patient's treatment or care.



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Nancy McKenzie, PhD

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Power of Attorney


A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal.

Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal, such as executing a stock power, handling a tax audit, or maintaining a safe-deposit box. Powers of attorney can be written to be either general (full) or limited to special circumstances. A power of attorney generally is terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time.

A special type of power of attorney that is used frequently is the "durable" power of attorney. A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal. The two types of durable power of attorney are immediate and "springing." The first type takes effect as soon as the durable power of attorney is executed. The second is intended to "spring" into effect when a specific event occurs, such as the disability of the principal. Most often, durable powers of attorney are created to deal with decisions involving either property management or health care.

Durable powers of attorney have become popular because they enable the principal to have her or his affairs handled easily and inexpensively after she or he has become incapacitated. Before the durable power of attorney was created, the only way to handle the affairs of an incapacitated person was to appoint a guardian, a process that frequently involves complex and costly court proceedings, as well as the often humiliating determination that the principal is wholly incapable and in need of protection.

With a durable power of attorney, on the other hand, a principal can appoint someone to handle her or his affairs after she or he becomes incompetent, and the document can be crafted to confer either general power or power in certain limited circumstances. Because no judicial proceedings are necessary, the principal saves time and money and avoids the stigma of being declared incompetent.

The concept of the durable power of attorney was created in 1969 when the National Conference of Commissioners on Uniform State Laws promulgated the uniform probate code (U.P.C. § 5–501). Ten years later, the provisions of the code dealing with the durable power of attorney were modified and published as the Uniform Durable Power of Attorney Act (UDPA). All fifty states recognize some version of the durable power of attorney, having adopted either the UDPA or the Uniform Probate Code, or some variation of them. Versions of the durable power of attorney vary from state to state. Certain powers cannot be delegated, including the powers to make, amend, or revoke a will, change insurance beneficiaries, contract a marriage, and vote.

further readings

Insel, Michael S. 1995. "Durable Power Can Alleviate Effects of Client's Incapacity." Estate Planning 22 (February).

Rains, Ramona C. 1996. "Planning Tools Available to the Elderly Client." American Journal of Trial Advocacy 19 (spring).


Living Will.

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power of attorney

pow·er of at·tor·ney • n. Law the authority to act for another person in specified or all legal or financial matters. ∎  a legal document giving such authority to someone.

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"power of attorney." The Oxford Pocket Dictionary of Current English. . 16 Dec. 2017 <>.

"power of attorney." The Oxford Pocket Dictionary of Current English. . (December 16, 2017).

"power of attorney." The Oxford Pocket Dictionary of Current English. . Retrieved December 16, 2017 from