Durable Power of Attorney for Health Care | A Louisiana Advance Directive
Advance Directives are legal documents designed to ensure that Patients’ decisions concerning their medical care, including the right to refuse treatment, are understood and followed by their health care providers if the patients become physically or mentally unable to make these decisions on their own.
What are “Advance Directives”?Advance Directives are legal documents that explain a person’s choices about medical treatment or designate someone to make decisions about that person’s medical treatment if he/she is incapacitated. These documents are referred to as “advance” directives because they are prepared in advance so that a patient’s health care providers will know the patient’s wishes concerning medical treatment.
Louisiana law recognizes 2 types of advance directives:
1) A Living Will (also known as a Declaration); and
2) A Durable Power of Attorney for Health Care.
What is a DURABLE POWER OF ATTORNEY FOR HEALTH CARE?A Durable Power of Attorney (“DPAHC”) is a legal document by which one person authorizes another person (an agent or attorney-in-fact) to make health care decisions in the event that the one person becomes temporarily or permanently unable to make those decisions for him/herself. These can include health care decisions concerning surgery, medical expenses, nursing home residency, and medication administration. A copy of a Durable Power of Attorney can be found at the end of this outline.
Who is eligible to be appointed as an attorney-in-fact or agent?A person may appoint any competent adult to be his/her agent or attorney-in-fact. The individual selected does not have to be an attorney. The appointed person should have a clear understanding of the appointer’s wishes and is comfortable accepting the responsibility. Members of the family are the most common choices for the agent or attorney-in-fact. The agent or attorney-in-fact can resign at any time upon giving written notice to the person, the person’s doctor, or the health care facility where the person is being treated.
When does the Durable Power of Attorney for Health Care become effective?The DPAHC only comes into play if the patient is temporarily or permanently unable to make his/her own health care decisions. If, after the DPAHC becomes effective, the treating physician determines that the patient has regained the capacity to make his/her own health care decisions, then the patient’s agent’s authority ends and the patient’s consent is required for all future health care decisions.
What type of decisions does a DPAHC cover?The patient has the ability to control the decisions his/her agent is able to make in the event the patient becomes incapacitated. If the patient does not limit his/her agent’s authority, then the agent will be able to make the same decisions concerning medical treatment and intervention that the patient would be permitted to make if he/she was not incapacitated. These decisions can include the withholding or withdrawal of treatment and life-sustaining procedures.
Can more than one individual be appointed as agent?Yes. The law allows a person to designate alternatives in the event that the first choice is unable or unwilling to act. The agent cannot be compensated for the performance of his or her duties pursuant to the DPAHC but may be entitled to the reimbursement of expenses incurred in the performance of his or her duties pursuant to the DPAHC. The DPAHC must be signed by the patient and dated. The signature must be witnessed by two adults or the patient may sign the document in front of a notary public. The only people who cannot serve as witnesses are people related to the patient by blood or marriage or people entitled to inherit from the patient.
Can an agent be held criminally or civilly liable?An agent cannot be held criminally or civilly liable based on treatment decisions made in good faith on the patient’s behalf. An agent also is not responsible for the cost of medical care and treatment simply because he or she is an agent.
What are the differences between the DPAHC and a Living Will?The living will only comes into play if the patient is in a continual profound comatose state or is terminally ill. The DPAHC allows the patient to appoint an agent to make all medical decisions in the event that he/she becomes incapacitated. The DPAHC is broader and gives the agent the authority to respond to unanticipated medical situations.
What happens if the patient does not have Advance Directives?Advance Directives are not required. If the patient does not have one and is unable to make decisions for him/herself then the patient’s health care providers will consult with the following people in the order listed:
1. Patient’s legal guardian;
2. Patient’s spouse (not judicially separated);
3. Patient’s adult children;
4. Patient’s parents;
5. Patient’s brothers or sisters;
6. Any other relative(s) of Patient.
Are health care providers required to follow Advance Directives?Generally, yes, if the Advance Directives comply with the law. Laws differ somewhat from state to state, but in most cases a patient's expressed wishes will be honored. The laws of Louisiana have long recognized that all persons have the right to make decisions about their medical care. This includes the right to either consent to or refuse treatment and/or surgery. Informed consent means that the patient is fully informed of the reason and benefits of a treatment, any risks involved, and any options.
If the physician or other health care provider cannot or will not follow an advance directive for moral, religious or professional reasons, even though the directive complies with Louisiana law, the physician and/or health care providers must immediately notify the patient. In Louisiana, the law requires the health care provider to transfer the patient to another doctor or facility that will honor the patient’s choices.