Public Health Law Map - Beta 5 - Medical and Public Health Law Site

This issue should be discussed with patients who seek to execute a power of attorney
to consent to medical care. It is important that patients realize the heavy burden that
accompanies the right to consent to medical care for a loved one. They should
consider whether they have a close friend or more distant relative who would be
better able to make objective decisions and weather the pressures associated with the
decisions.
Financial conflicts of interest also are inherent in family relationships. Returning to
the example of the husband who has power of attorney to consent to his wife’s care,
if their resources are limited or the proposed treatment is very expensive, the
husband will have to choose between paying for his wife’s care or the needs of other
members of the family. A third party can make more reasoned decisions about
allocating resources and is less likely to consent to questionable treatments that the
couple cannot afford.
3. Limitations
A power of attorney to consent to medical care may be limited in whatever way the
person delegating the right wishes, consistent with public policy. Put simply, a
person may not use a power of attorney to force treatment decisions that would
otherwise be improper. For example, the person with a power of attorney may not
authorize active euthanasia or force the physician to provide care that the physician
would not otherwise provide.
If the person delegating the authority to consent is suffering from a terminal illness, it
is usual to state that the power of attorney to consent to medical care is to remain in
effect until revoked. It is also usual for spouses to execute prospective powers of
attorney that are of indefinite duration, called durable powers of attorney. A durable
power of attorney remains in force if the patient becomes legally incompetent. In
some states, a power of attorney expires when the patient is declared legally
incompetent. In all states, the court may supersede a power of attorney by appointing
a guardian for the person. The courts are interested in perpetuating the person’s
wishes and will usually honor a guardian who is proposed in the power of attorney.
For the power of attorney to be durable, it must recite that the patient wants the
power of attorney to remain effective if he or she becomes incompetent. If the person
is concerned only with temporary incapacity secondary to medical treatment, the
power of attorney to consent to medical care should have an expiration date.
A power of attorney to consent to medical treatment may be unlimited, or it may
authorize only certain medical decisions. It is even possible to execute more than one
power of attorney to consent to medical treatment, as long as each document is
limited and does not conflict with the others. This might happen when the person
executes a general power of attorney to consent to routine medical care and a specific
power of attorney to refuse or terminate life support.
In some situations, it is difficult to determine what authority the patient intended to
delegate. The patient may have delegated the right to consent to more than one
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