As a risk manager of an acute-care hospital, I find myself answering many questions about power of attorney, guardianship and who has the authority to consent to the treatment of our patients. Providing a response can be fairly easy, but there are occasions when it becomes a challenging issue and one that requires a deeper look.
Many people assume that there is only one type of power of attorney and that this provides them with the unlimited authority to make decisions, including medical decisions, on behalf of their loved ones. Unfortunately, this is not accurate.
A power of attorney is a legal document in which one person authorizes another person (attorney-in-fact) the authority to make decisions or to act on his or her behalf. A durable power of attorney is the most appropriate type used for making medical decisions. This means the power of attorney is effective even if you are incapacitated.
This type of power of attorney can be immediate or springing. An immediate power of attorney starts as soon as it is signed, but a springing power of attorney does not take effect until after an event occurs, such as disability or loss of mental capacity. It is important to note that once a loss of mental capacity has occurred, one cannot obtain a power of attorney.
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A guardian is a person who is appointed by the court to make legal decisions on behalf of another person (ward) due to disability or loss of mental capacity. Guardianship might be necessary for an elderly patient who has become incapacitated. Depending on the type of guardianship, a guardian may consent to medical or other professional care or treatment on behalf of the ward.
When choosing who will be designated to act on your behalf, it is best to designate one person you can trust and who understands your health care needs and desires. Making medical decisions for another person is not easy and requires a great deal of thought and consideration. Being prepared can make a beneficial difference and provide assistance with life-changing circumstances.