Durable Power of Attorney for Health Care

You’ve been become ill or been injured. You’re unconscious, or, you are simply in so much pain that you can’t speak; or you are no longer “competent”. A medical decision needs to be made. NOW.

Who is going to make that decision, since you either can’t make the decision, or, you can’t communicate what you want done?

The best, and easiest, solution is for you to designate (in a notarized writing) someone to make a “health care decision[1]” for you (if you cannot make one for yourself) BEFORE the crisis occurs. This document is commonly called a Durable Power of Attorney for Health Care[2] (or a Health Care/Medical Directive).

The decision maker specified your Durable Power of Attorney for Health Care has decision making powers are as broad or as narrow as you specify. Generally, the decision maker will be authorized to determine whether “life sustaining procedures[3]” should be employed and when it’s time to let you go. HOWEVER, the decision maker cannot withhold any treatment which is necessary for your comfort or freedom from pain.

The decision maker is required to follow your wishes on these matters. Accordingly, selection of the individual for this responsibility is of critical importance. You need to choose someone who knows your wishes and is strong enough to carry them out. Although any mentally competent person of legal age (including a close friend) can serve in this role, often the decision maker is your spouse, or a family member. You should consider choosing one (or more) alternate decision maker(s) who can fill this need in the event that a previously listed individual cannot, or will not, serve.

A Durable Power of Attorney for Health Care is different from a “Living Will[4]” in several very important respects:

Living Will Durable Power of Attorney for Health Care
Who is the Designee? Attending physician[5] Any competent person of legal age whom you trust to make this decision[6]
When does it take operative effect? Only when you are in a terminal condition and you cannot make treatment decisions[7] Only when your attending physician determines that you are unable to make health care decisions on your own behalf[8]
What does it authorize? Only withholding or withdrawing life sustaining procedures[9] Consent, refusal of consent or withdrawal of any care, treatment, service or procedure (including, but not limited to, life sustaining procedures) to maintain, diagnose or treat your physical or mental condition[10]

If you are unconscious and in a “terminal condition[11]” but you have NOT prepared a Durable Power of Attorney for Health Care, decisions relative to the withdrawal of life sustaining procedures may made (in conjunction with your attending physician) by (in order):

  • A legally appointed Guardian (with court approval for the withdrawal);
  • Your spouse;
  • A majority vote by those of your children who are of “legal” age;
  • Your parents;
  • An adult sibling[12]

Again, if these are not the individuals you would prefer to make these decisions, or if they are not in the decision making order which you would prefer, it is necessary for you to designate an individual to act on your behalf in a Durable Power of Attorney.

Preparing or reviewing a Durable Power of Attorney for Health Care is not complicated, but it may be a tremendous benefit to your family in a time of tremendous stress. A Durable Power of Attorney for Health Care, allows you to control who will make decisions for you, and can save you, and your loved ones, from the heartache suffered by ALL of the parties in the Terri Schiavo situation.

[1] Iowa Code (2009) §144B.1(3) and (4).

[2] Iowa Code (2009) §144B

[3] Iowa Code (2009) §144A.2(8)

[4] Iowa Code (2009) §144A.3

[5] Iowa Code (2009) §144A.3(5)

[6] Iowa Code (2009) §144B.3(2)

[7] Iowa Code (2009) §144A.3

[8] Iowa Code (2009) §144B.6(1). This is inability” may be due to illness, injury or mental incompetence

[9] Iowa Code (2009) §144A.3


[11] Iowa Code (2009) §144A.2(13)

[12] Iowa Code (2009) §144A.7(1) Note: these provisions are limited to only take effect if you are in a “terminal condition”, and only relate to withdrawal of life sustaining procedures.

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