Who Makes your Medical Decisions if you’re in an accident?

It does not take kin-killing Lannisters, royal intrigue, or even the dark squabbles of bad family drama to make health care agents a good idea. All of the people we know have different skill-sets, and we trust them to make different kinds of decisions well.

If we can’t make a decision for ourselves, and we know what the decision is about, we probably know who we want to make it for us. We might trust our sister with money, our brother with raising a child, our Uncle Bob with getting the hedges to look perfect, our adult child to pass his courses at college, and our cousin Susan to make health care decisions.

But what happens if we don’t ask that person to make the decision?

What if we can’t?

What if we can’t reach through the fog of illness or disability to make medical decisions?

The Default Rules:

There are default rules for who makes health care decisions for us if we can’t. They vary by state.

In Washington State, it’s these people, in order of priority: [1]

· Any court-appointed guardian

· The person who is our health care agent [2]

· Our spouse [3]

· Our adult children

· Our parents

· Our adult brothers and sisters

Health care providers must make a reasonable effort to locate and secure authorization from each kind of person, starting at the top of the bullet-list above. If none of a kind of person is available, someone from the next kind of people can make the decision.

If there’s more of any of these—for example, more than one adult child is available—then all of them must agree to give consent to health care.

So in the example above, our health care decisions are made by our 19-year-old adult child instead of by the decision-maker we would choose, our cousin Susan.





Let’s look at a few more examples.

Examples

Consider the following families:





Spouse: any age

Children: 17

Parents: 93

Adult Siblings: 39, 46

Disabled By: You and Spouse in highway accident

Decision-Maker: 93-year-old parent





Spouse: any age

Children: 12, 16, 18

Parents: 72

Adult Siblings: 39, 46

Disabled By: You and Spouse hit by drunk driver

Decision-Maker: 18-year-old child





Spouse: divorced

Children: 5, 7, 20

Parents: deceased

Adult Siblings: 39, 46, both work in health care

Disabled By: You fall off a ladder and land on your head

Decision-Maker: 20-year-old child





Spouse: none

Unmarried partner: 37

Children: 5, 7, 11

Parents: cut out of your life years ago

Adult Siblings: terrible decision-makers

Disabled By: Early-onset Alzheimer's

Decision-Maker: estranged Parents

In each of these examples, it’s unlikely that you want the decision-maker whom the law has appointed for you.

Maybe you do, if they happen to be exceptional people. But probably you don’t.

That’s why you name a Health Care Agent. Coming in right behind court-appointed guardians on the list of health care decision makers, they take priority over every other possible decision-maker.

After all, you don't want to swallow a lot of bad decisions.

Nominating a Health Care Agent

You name a Health Care Agent—also known as an Attorney-in-Fact for Health Care—by filling out a Power of Attorney for Health Care.

Don’t let the name fool you. If something just says “Power of Attorney,” then it frequently does not grant the power to make health care decisions for you.

Powers of Attorney are documents that give a person called your “agent” or your “attorney-in-fact” the ability to make certain decisions for you. People almost always use a separate power of attorney for health care. This may be because they want different people to make health care decisions than they want to make financial decisions. For example, you may trust an adult relative who lives with you to make health care decisions, but trust another adult to manage your money properly.

Still, it is possible that a general power of attorney will technically provide the ability to make health care decisions. State law tells you how to interpret the document. In Washington, [4] for example, the current law is that a power of attorney giving your agent the power to do all that you could do delegates health care decisions as well as many other kinds of decisions, though not all decisions. [5]

Even a Power of Attorney that says that, however, might not give your agent authority over health care decisions—for example, it may explicitly say elsewhere that it is not intended to give someone the power to make health care decisions. Similarly, someone looking at it may be concerned that it is addressed primarily at financial matters. Accordingly, it is usually best to have a separate document for health care.

Signing





A Power of Attorney must be signed [6] and dated by the person making it (who is called the principal), and then according to law must be either acknowledged before a notary or attested to by two witnesses.

Get it notarized. Going to a notary public and acknowledging that it is your signature on the document makes your power of attorney much more reliable and difficult to challenge under Washington Law. It means there is much less legal risk for anyone accepting the power of attorney, so more people are willing to accept it. It also means that if someone refuses to accept the power of attorney and you have to go to court, they may have to pay for your lawyer. While this is even more important for financial powers of attorney (since many banks are not the most customer-centric organizations in the world), it is still important for health care powers of attorney.

Witnesses must be competent (so no children), may not be home care providers for the principal, cannot be care providers at an adult family home or long-term care facility in which the principal resides, and must be unrelated to the principal or agent by blood or marriage. [7]

As a practical matter, having the Power notarized is more useful than having it witnessed, although you can certainly do both if you want and there is no harm in it. (Using both is even preferred for Powers of Attorney dealing with matters other than healthcare.) While either the witnesses or the notarization will make it valid, the notarization makes it harder for someone to contest your signature. [8]

While you hope nobody ever contests the document, family drama gets ridiculous in a way which makes national elections seem reasonable.

Conclusion

Bad Drama is bad. Prevent drama. Name a Health Care Agent

Tom White writes " A Little Deathy ." He is Attorney/Owner of King County Business Law in Seattle, Washington, is admitted to practice law in WA and NY, and is the pseudonymous author of UN-acclaimed anti-human-trafficking novel River of Innocents . He is an Eagle Scout and recipient of the Order of the Arrow's Vigil Honor, and he volunteers at the Housing Justice Project . A graduate of Williams College and Georgetown Law, Tom can occasionally be spotted in the wild at Seattle coffee shops.

This is NOT a substitute for attorney advice. This is a general article discussing Washington State law.

[1] RCW 7.70.065(1)(a)

[2] “Health Care Agent” also means “Attorney-in-Fact” for Health Care decisions.

[3] Or Registered Domestic Partner

[4] Unless the power of attorney itself specifies that it uses the law of another jurisdiction, or failing that if it was executed in another jurisdiction. see RCW 11.125.070 (2016).

[5] See RCW 11.125.250 (2016) .

[6] There is a provision in RCW 11.125.050 for a person physically unable to sign his or her name.

[7] Or state registered domestic partnership.

[8] While this paragraph describes the legal signing requirement, there are other techniques used in a formal signing ceremony to make it even harder to assail certain legal documents. Controlling the environment may prevent distractions that could be used to assault the document in court. Using a blue pen makes it easier to identify originals. There are a number of tricks like this.



