Here are some of the most frequent questions and dilemmas individuals have when it comes to durable power of attorney for healthcare.

If your question is not addressed here, remember that you can always consult an experienced estate attorney at the Law Offices of Irina Sherbak. Contact us and book your 30-minute case review – no cost, no pressure, no obligation!

Here are some more useful posts:

• What is advance healthcare directive?
• How to do it right? 
• How to choose your agent for durable POA for healthcare? 
• Durable POA for health vs. living will

Who can take out durable power of attorney for healthcare?

According to Californian law, an individual has to be 18 or older to be able to have a durable POA for healthcare. Another precondition is that the individual be of sound mind, as no one can force you into executing this document.

When does durable power of attorney for healthcare come into effect?

This document comes into force when the grantor (the person who executes the document) becomes incapacitated and is unable to express their own wishes about the kind of medical treatment they receive. Incapacitation is assessed by medical doctors who determine that you are unable to understand the nature and the consequences of medical choices and/or you are unable to communicate your preferences in any way (speech, gestures, writing).

If it is not clear whether you are or are not able to make medical decisions for yourself, your doctor will decide whether your durable power of attorney for healthcare should spring into effect.

If you want to avoid having to involve your doctor in determining your capacity, you can execute a durable POA which becomes effective immediately. Even if you choose this route, your agent will never be able to override your wishes if you have the capacity to make your health care choices.

Is the agent obligated to act according to your wishes?

Yes, the agent must act in your best interest and according to your preferences. In a less straightforward formulation, your agent must diligently try to honor your wishes as they are laid out in your durable power of attorney for healthcare.

When does durable power of attorney for healthcare become void?

You can alter your durable POA for healthcare at any time, so long as you have the capacity to do so, just be sure to give a copy of the updated document to all parties involved. You can also revoke it at any time, so long as you have the capacity to do so, but you should again notify the agent and third parties about it.

The document will lose validity after your death, except when powers related to autopsy, organ donation and body disposition are granted.

In rare circumstances, the court may step in and invalidate the document or revoke the agent’s authority. This happens when someone doubts that the principal (the grantor) was legally capable of making such healthcare directives or when there is reasonable doubt that the agent is acting in the best interest of the principal. Any technical errors related to the document may also result in the document being revoked, but this is highly unlikely if the wishes are clearly expressed and the grantor was undoubtedly of sound mind.

In the state of California, if you get divorced while your DPOAFHC is in effect and you named your spouse your healthcare agent, the durable power of attorney will NOT be annulled once the divorce is final. You must execute a new document naming someone other than your former spouse as your agent, unless you would like your former spouse to continue making medical decisions on your behalf if you are unable to do so yourself.

Should you communicate the content of the document to your agent and close people?

In many cases, it’s advisable to keep one’s legal matters private. With end-of-life preferences, the opposite could be better. You are advised to inform your agent, physician and family members about your wishes related to your health care. As difficult as such conversations may be, they will provide a huge relief for your loved ones in accepting and honoring your wishes. It will also prevent emotional burdens and feelings of guilt.

Where should you keep your durable power of attorney for healthcare?

You should keep your DPOAFHC in your file with other legal documents. You should also give a copy to your agent and your primary physician. If possible, you can also bring a copy with you if you get admitted in hospital so it can be put in your medical records. Our recommendation is that you also keep a copy in your suitcase if you travel and a copy in the glove compartment of your car.

Answer all your questions with the help of trusted San Diego estate attorney

Whatever questions you may still have, you’d best have them answered by a reputable legal professional who specializes in estate planning. The professionals at the Law Offices of Irina Sherbak are vastly experienced and competent to provide you answers tailored to your specific situation. Pick up the phone and call us now to schedule your free, no-obligation 30-minute consultation!