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Understanding Medical Power of Attorney

Posted by Aubrey Carew Sizer | Jan 17, 2022

The future is uncertain. Healthy individuals can become temporarily incapacitated due to accidents or other medical emergencies. Have you given thought to who you want to make decisions about your medical treatment if you are unconscious, mentally incapacitated, or are otherwise unable to communicate your decisions or wishes? A medical power of attorney (POA) can be used to designate a person you trust to be in charge of making healthcare decisions on your behalf in the event of your incapacity. If you need help with crafting an estate plan or developing a medical POA, contact the experienced estate planning attorney at The Law Office of Aubrey Carew Sizer PLLC. Call (571) 403-2619 to schedule a case evaluation.

Understanding a Medical Power of Attorney in Virginia

A medical power of attorney (POA) is a legal document that you can use to designate someone (e.g., your spouse or adult child) to make critical healthcare decisions on your behalf when you no longer have the capacity to do so. In Virginia, a medical POA is a type of advance directive. The individual you designate in the medical POA – known as your healthcare agent or proxy – has the authority to make decisions for you when you cannot communicate your wishes.

Creating a medical POA gives the designated person legal authority to make critical decisions about your healthcare when you can no longer make them yourself. The decisions that your agent will have the authority to make on your behalf include decisions regarding the following:

  • End-of-life care
  • Surgery
  • Medication
  • Treatment options

The legal document may also specify the healthcare that you, as the principal, do or do not authorize. In Virginia, medical power of attorney is also referred to as durable power of attorney for healthcare and healthcare power of attorney.

When Do You Need To Make A Medical Power of Attorney?

An unexpected injury or illness could leave a person with the inability to communicate their decisions or wishes. For this reason, you can achieve some peace of mind by legally establishing a medical power of attorney.

With a medical POA, you can designate the person you trust to make critical decisions about your healthcare if there comes a time when you are unable to do so. Under the Code of Virginia § 54.1-2983, a written advance directive, including a medical POA, must be signed by the principal (the person who makes a POA) in the presence of two witnesses. Consider consulting with an experienced estate planning attorney to help you correctly express your wishes and ensure that the POA is binding.

When Does a Medical Power of Attorney Become Effective?

A medical power of attorney will take effect once a person become incapacitated and cannot communicate their healthcare decisions. Common examples of when a medical POA may take effect include situations in which the principal:  

  • Is under general anesthesia
  • Suffers an illness that renders them unable to communicate their decisions and wishes
  • Suffers a brain injury rendering them incapable of medical decision making
  • Has been in an accident that left them unconscious or in a coma
  • Suffers from Alzheimer's or another condition that causes a decline in the ability to make reasonable decisions

When a medical power of attorney takes effect, the appointed healthcare agent will be able to make medical decisions on your behalf.

Choosing a Healthcare Agent for a Medical POA

Choosing the person to appoint as your healthcare agent in a medical POA is often a challenging decision to make. The decision can have a tremendous impact on your health, treatment, and life. You should choose a person you trust to honor your wishes and who can make potentially difficult medical decisions. The healthcare agent will be required to act in your best interests. The agent will have to make healthcare decisions as specified in the medical power of attorney and potentially make decisions that were not specified in the legal document. For this reason, choosing a healthcare agent is a huge responsibility. Usually, people who make a medical POA choose the following persons to act as their healthcare agents:

  • Spouses
  • Adult children
  • Parents
  • Best friends
  • Other family members

When exploring whether or not to create a medical power of attorney, consider asking an experienced estate planning attorney if you should consider naming more than one healthcare agent. The successor agent will have the legal authority to make healthcare decisions on your behalf if the agent you initially chose is unable to serve in that capacity due to death, incapacity, or other reasons.

Consider speaking with a knowledgeable estate planning attorney at The Law Office of Aubrey Carew Sizer PLLC to help you draft a medical power of attorney and other legal documents to set up a comprehensive estate plan.

Changing or Revoking a Medical Power of Attorney

A person can change or revoke their medical power of attorney at any time, assuming they have the mental capacity to do so. However, a person cannot change or revoke a power of attorney if they are unable to understand the nature and effect of their actions. 

Under the Uniform Power of Attorney Act, codified at the Code of Virginia § 64.2-1608, a power of attorney agent's authority to make decisions on behalf of the principal terminates when one of the following takes place:

  • The principal revokes a power of attorney
  • The agent becomes incapacitated, dies, or resigns
  • There is a divorce or annulment of the marriage between the principal and the agent (if the principal designated their spouse to act as their healthcare agent)
  • The power of attorney terminates

Reviewing and updating your medical POA is a crucial aspect of estate planning. Consider visiting with an attorney if any significant life changes could potentially impact your medical POA and other portions of your estate plan.

Contact a Virginia Estate Planning Attorney

Contact our estate planning attorneys at The Law Office of Aubrey Carew Sizer PLLC to discuss whether or not a medical power of attorney is right for your estate plan. Our office is prepared to help you draft a medical POA to ensure that someone you trust will make healthcare decisions on your behalf in the event of your incapacity. Consider contacting our legal team today at (571) 403-2619.

About the Author

Aubrey Carew Sizer

Aubrey Carew Sizer is the Principal Attorney of The Law Office of Aubrey Carew Sizer PLLC, a Northern Virginia law firm providing representation for Wills, Trusts, and Estate Planning, Long-Term Care Planning, Guardianship and Conservatorship, Special Needs Planning for the Disabled, and Probate, Estate and Trust Administration.

Services

The Law Office of Aubrey Carew Sizer PLLC provides customized and affordable estate planning (including wills, living trusts, powers of attorney, and advance medical directives); elder law services (including long-term care planning, special needs planning for the disabled, and guardianships and conservatorships); probate, estate and trust administration (including advising executors and administrators of estates about post-mortem planning and the local probate process in Virginia), as well as general aging and disability advice in Northern Virginia, including but not limited to Arlington, Alexandria, Ashburn, Bristow, Burke, Centreville, Chantilly, Gainesville, Fairfax, Falls Church, Haymarket, Herndon, Leesburg, Manassas, Manassas Park, Reston, Springfield, Sterling, and throughout Loudoun, Prince William, and Fairfax counties.

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