Chapter 7-7 Medical Power of Attorney

• Jurisdiction: United States

7-7 Medical Power of Attorney

In the Elder Law context, in a medical power of attorney, the elderly person, as principal, appoints an agent to make health care decisions on his or her behalf that he or she could make if he or she were competent.⁷⁸ Pursuant to the Health and Safety Code, the agent may be anyone except:

1. the principal's health care provider or his or her employee, unless that person is a relative of the principal; or

2. the principal's residential care provider or an employee of the residential care provider, unless that person is a relative of the principal.⁷⁹

The medical power of attorney must be made in writing, and normally must be signed by the principal in the presence of two witnesses who must themselves sign the document.⁸⁰ The witness requirements are similar to those for a Directive to Physicians, Family or Surrogate.⁸¹

In lieu of signing in the presence of the witnesses, the principal may sign the medical power of attorney and have the signature acknowledged by a notary public.⁸²

If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal's name in the principal's presence and at the principal's express direction.⁸³ The person may use a digital or electronic signature to "sign" the principal's name.⁸⁴

To be effective, the medical power of attorney must be delivered to the agent.⁸⁵ Upon becoming effective, the power of attorney remains effective until it either expires—if it contains an expiration date—it is revoked, or the principal becomes competent.⁸⁶

7-7:1 Revocation of Medical Power of Attorney

A medical power of attorney can be revoked by the principal making an oral declaration or handing a written notification to the agent, a licensed or certified health or residential care provider, or by any other act that evidences the principal's intent to revoke the power.⁸⁷ The principal's competency or mental state is irrelevant to his or her ability to issue this notification.⁸⁸

The principal can also revoke the power of attorney by executing a new one.⁸⁹

Finally, a medical power of attorney is revoked by the divorce of the principal and his or her spouse if the spouse is named as the principal's agent, unless the medical power of attorney provides otherwise.⁹⁰

7-7:2 Disclosure and Form

Health and Safety Code § 166.164 provides the form which the principal completes and signs to appoint an agent to make health care decisions. The principal may provide individualized instructions in the section labeled "limitations of the decision-making authority of my agent." The power...