“Advance Directive” documents are forms designed to enforce the wishes of a patient for medical care in the event the patient is mentally or physically unable to make those decisions in the unforeseen future. These forms are used quite commonly as patients enter the “End of Life” stage but can be used for events occurring much earlier in life. Some of the most commonly used “Advance Directive” forms include a Healthcare Power of Attorney, Living Will, LaPOST Directive, and sometimes a General Power of Attorney. Part I of this article will address the different uses and forms for power of attorney documents. Part II of this article will address the Living Will, LaPOST Directives, and who would be legally authorized to make medical decisions for an incapacitated patient in the absence of Advance Directive documents.
- Healthcare Power of Attorney - The Healthcare Power of Attorney is the most common way for a patient to confer upon a representative the ability to make healthcare decisions on their behalf. A patient can confer upon a representative the authority to make any medical decisions on their behalf including the arranging of sitters, nurses, cooks, etc. to provide service at the home of the patient, as well as the purchase of medical equipment and supplies. The representative can be granted the ability to consent, refuse, or withdraw any medical services, medical treatment, or medications recommended or provided to the patient. The Healthcare Power of Attorney usually includes durability provisions which continue the authorities granted even after the incapacitation of the patient, as this is the condition for which the document is most needed. However, as long as the patient has the capacity to make their own decisions, the healthcare provider should follow the patient’s wishes.
Louisiana law does not directly address the proper form for a Healthcare Power of Attorney, but common practice is to follow the rules established for the requirements of a Living Will [addressed in Part II] which require the document to be in writing and signed in the presence of two competent witnesses. Best practice is to have the document notarized, but there is no apparent requirement for notarization.
- General Power of Attorney - A General Power of Attorney is a very powerful document that allows an individual (Principal/Grantor/Mandatary/Patient) to grant to another person (Agent/Attorney-in-Fact/Patient’s Representative) the power to manage their personal affairs, financial decisions, and legal matters. A validly executed General Power of Attorney allows an Agent to make decisions that legally bind the Principal to the Agent’s decisions and actions and can include disposal of tangible personal property of the Principal; buying, selling or exchanging stocks, bonds and other financial instruments; establishing, maintaining or disposing of funds in bank accounts; managing the Principal’s business interests; continuing or terminating insurance policies, including changing the beneficiary of said policies; managing matters in litigation; managing retirement plans, etc. Although a General Power of Attorney is usually very expansive in nature and very powerful in binding the Principal to the acts of the Agent, it does not typically grant the Agent the power to make medical decisions on behalf of the Principal. These provisions can be included in a General Power of Attorney, however, so if this document is presented as the basis for medical decision making on behalf of a patient, it is imperative that the healthcare provider identify the specific provisions in the General Power of Attorney that authorize medical decision making. The General Power of Attorney can include “durability” provisions which will allow the document to remain in effect if the Principal becomes incapacitated, which can eliminate the need for interdiction proceedings if there is no power of attorney granted.
Louisiana law does not require any particular form for a General Power of Attorney, unless the power conferred requires formality, such as the transfer of real estate, which would require an authenticated act notarized and witnessed by two witnesses. However, financial institutions and the like have their own requirements, and so it is best practice to have a General Power of Attorney signed by two independent witnesses and notarized. If the General Power of Attorney includes medical decision making, Louisiana law does not require notarization, but it would need the signature of the Principal with two competent witnesses to be enforceable.
Stay tuned for Part II of this article, which will discuss the Living Will, LaPOST Directives and who would be legally authorized to make medical decisions on behalf of an incapacitated patient in the absence of Advance Directive documents. Part II will be included in a future issue of The LINK.