Choosing to give power of attorney (POA) to someone else is a very personal choice. It is certainly something that every family should consider and think about carefully.

What is a POA?

A POA is a document to assign someone (known as an agent) to take care of decisions you may not be able to make at some point due to inability for some reason (like you are out of town), injury or illness.

There are four types of POAs.

1)      Limited – A limited power of attorney gives someone the ability to act in your stead for limited purposes only. This might be something like signing the deed to a property if you are out of town. A limited POA usually ends at a specific time noted in the document.

2)      General – A general power of attorney is more comprehensive. It gives your agent any powers or rights you have yourself. It allows someone to pay your bills or sign documents for you. You don’t have to be incapacitated to have a general POA. This type of POA ends upon death, if you become incapacitated, or if you rescind it.

3)      Durable – A durable power of attorney can be general or limited. It remains in effect even after you become incapacitated. If you do not have a durable POA in effect and you do become incapacitated, no one else can represent you unless a court appoints them. A durable POA stays in effect until death. It can be rescinded if you are not incapacitated.

4)      Springing – A springing power of attorney is like a durable POA. However, it only goes into effect if you are incapacitated. The standards for determining incapacity should be clearly laid out in the POA.

A durable or springing POA is what is meant when discussing having a medical power of attorney (MPOA). However, an MPOA does not replace the regular POA – they are separate legal documents that have different purposes

Why might family caregivers need a POA?

A power of attorney is an easy way to allow another trusted person to step in and handle a person’s legal or financial matters. In the case of a hospice patient, this might occur if the patient becomes incapacitated for any reason due to injury or illness.

How does a MPOA work?

The powers conveyed by a MPOA vary from state to state and should be examined carefully.

In many states, the MPOA gives an agent the responsibility to manage a person’s personal, financial, property and other legal matters outlined in the MPOA.

Since there are limited types of POAs, though, it is possible that someone might have a POA that does NOT give their agent any authority to make medical decisions. This means that while you may have POA in place, if it is not the right type your agent cannot make medical decisions in your stead. This can include things such as terminating treatment or over-riding a doctor’s decisions.

That is why in many states, in addition to having a regular POA you may also want to have an MPOA in place. This will give your agent the right to act on your behalf in making medical decisions.

An MPOA must be executed while the person giving the MPOA is fully medically and legally competent, just like with a regular POA. And, just like a regular POA, an MPOA can be rescinded if you are not incapacitated.

Can an MPOA or POA ever be over-ridden?

In most circumstances, the answer is No.

There have been occasions when an outside party has intervened between a patient who cannot make decisions for themselves and their agent. Typically, this happens only when the agent, who is often a state agency such as Adult Protective Services, can go before a court of appropriate jurisdiction and get an order to over-ride the POA and/or MPOA. Such situations are unusual.

If the agent acts in what is clearly the best interests of the person who cannot act for themselves, courts are generally reluctant to over-ride a properly drafted POA and/or MPOA.

When should I write a POA?

Many times, this discussion is triggered only when both spouses are living and one of them becomes ill. However, some couples exchange POA with each other while both are still in good health, just to be sure.

While this is not a decision most people want to think about, it is better to do it sooner and while you are in good health rather than waiting until you are in a stressful situation, or possibly unable to make the decision at all.