Medical or health care power of attorney in Virginia

An estate plan isn’t complete unless it includes proactive measures to determine what happens in the event you become incapacitated, and this planning includes a medical power of attorney (POA). A medical POA is specifically designed to establish who has the authority to make decisions regarding your medical care and specific treatment you want or don’t want.

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Call us at (855) 541-4867 or use the online contact form to schedule a consultation with a Select Law Partners PLLC estate planning attorney who will help you create or complete your estate plan, including a medical POA.

Continue reading to learn more about how a medical power of attorney in Virginia provides you with extra security and surety.

You should have a medical POA, even if you’re healthy now

Even if you have a clean bill of health, everyone should have medical power of attorney because unfortunately, accidents happen and you need to proactively implement what care you do or do not want in the event you cannot make those decisions.

Likewise, simply telling a family member of your medical care preferences is problematic. Without a medical POA, the doctor may not speak with the family member or honor your wishes. Further, unless they wrote your preferences word for word, they might not remember all of your instructions. Even if they remembered or wrote down your instructions, there’s still room for misinterpretation or they may simply ignore what you said, either on moral or religious grounds or because they are too emotional to make the right choice. 

Without a medical POA, the court can assign someone to make all medical decisions, even if their choices aren’t aligned with those you would’ve wanted. 

Living will: an advance medical directive

In addition to a medical POA, you will want to discuss creating a living will with your estate planning attorney. Similar to a medical POA, a living will is a legally binding advance medical directive that outlines your preferences and desires for medical treatment.

However, a living will only goes into effect if your incapacitation is expected to be permanent such as if there’s no reasonable expectation of recovery from a terminal condition or if you’re in a persistent vegetative state as defined in Code of Virginia § 54.1-2982.

If your incapacitation is temporary, such as falling into a temporary coma after a car accident but your doctors expect you to regain consciousness, your living will won’t have any legal standing.

A living will should be made in writing, and it must:

  1. Be entered into by an adult who has the capacity to make an informed decision; and
  2. Be signed in the presence of two witnesses who are neither blood relatives nor the declarant’s spouse.

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A living will may be made orally when:

  1. The declarant has been diagnosed with a terminal condition by their attending physician;
  2. The declarant is of sound mind and can make an informed decision;
  3. The oral directive directs the specific health care they do/do not authorize and appoints an agent to make decisions for them should they become incapable of making their own decisions; and
  4. Must be made in the presence of the attending physician and two witnesses. 

How an Attorney Can Help

You can avoid these complications by hiring a lawyer to draft a clear, binding medical POA. If it’s not properly prepared, it could be challenged in court. 

If you had a POA in another country or state then moved to Virginia, it could still be valid, but you should still ask a local attorney to review it to ensure it complies with Virginia requirements or to help you prepare a new one if your preferences have changed. Here’s a closer look at some of the required and optional selections for a medical POA in Virginia.

Required Selections

The below items must be included in your medical POA and will require careful thought and consideration.

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Agent

The “agent” is the person you choose to make your medical decisions, including those addressed in the POA and those that weren’t. You should also have backups, or “successor agents”, in the event something happens to your agent or if they aren’t available. Common choices for an agent include a partner or spouse, an adult child, a close friend, or a trusting family member. Your agent can’t be your doctor or any healthcare facility employee.

Take the time to speak with your potential agent before selecting them. They need to fully understand what you want them to do and be prepared to act on your wishes. 

Some specific scenarios you might want to discuss with your agent:

  • Situations where you might want aggressive treatment if it can save your life.
  • Scenarios where you wouldn’t want treatment, aggressive or otherwise, if it would mean your quality of life would be severely compromised (define what severely compromised means to you).
  • Determining when treatments should be stopped if your condition doesn’t improve.
  • Surgeries, including amputations

In addition to respecting your wishes, make sure you’ll agent will do the following:

  • Be prepared to put their personal opinions aside regarding certain types of medical options or procedures.
  • Be able to fully comprehend any medical explanations, including knowing what questions to ask.

Life-Sustaining Treatment 

Life-sustaining treatment is important to include in your medical POA as it can include the following scenarios:

  • If you want to be kept alive if you’re in a coma or vegetative state with little chance of recovery 
  • If you want to be kept on a breathing machine
  • If you want to be kept alive if you would be in constant pain
  • If you want to be kept alive if you would have a permanent condition that would require help with basic everyday activities

These aren’t easy situations to think about, but they require serious consideration. This is another area where an attorney could be of significant help. 

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Degree to Which Preferences Must Be Followed

You get to decide if you want your agent to use your wishes as a general guide or if you want them to be followed to the letter. 

Signatures

You must provide a notarized signature on your POA in the presence of two witnesses–they can be anyone you want as long as they’re at least 18 years old. 

Optional Selections

The following are optional selections for your medical POA, however they are very important and you should consider including them. 

Mental Health 

A medical POA isn’t limited to physical conditions and should include mental health issues that may arise. Common aspects of mental health inclusions in a POA may entail whether or not you want mood-stabilizing medications or certain treatments.

If you aren’t sure what types of mental health provisions you might want to include, your estate planning attorney from Select Law Partners PLLC can walk you through some of the more common and the extreme scenarios that are seen in medical POAs.

Additional, Personal Preferences

Your medical POA is yours to design to meet your needs–you have the ability to include additional provisions or preferences based on factors that are specific to your life, such as any predispositions for certain conditions or diseases that aren’t covered in any of the other topics.

Medical Power of Attorney for Minor Children

A medical POA for a child isn’t necessarily an end-of-life or incapacitation issue. Instead, most medical POAs are created for children when their parent(s):

  • Are deployed as an active member of the military
  • Are on extended travel
  • Have already or plan to undergo a procedure whose recovery process could leave you unable to make decisions for your child(ren).

This POA could last for a few weeks, a few months, or longer. Regardless of the duration, there will be a definitive end and the parents still retain all other authority. This shouldn’t be confused with naming a guardian of your child because it’s limited to specific rights regarding their healthcare rather than all decision-making rights.

The same careful considerations put into your POA should be given to determining the types of decisions you want the agent to make. 

Virginia Advance Health Care Directives Registry

The Virginia Advance Health Care Directives Registry is a tool you can use to electronically store critical documents including your medical POA, durable do not resuscitate, and other documents medical providers might need access to.

In addition to keeping your documents in a protected location, it also provides a central location for medical professionals in Virginia to access your documents if you allow them access. This can be crucial if your agent doesn’t have a copy of your POA with them in the event something happens.

Our Thorough Estate Planning Lawyers are Here to Help

A medical power of attorney is a very important piece of your estate plan that can be confusing and difficult to write, and you run the risk of excluding common scenarios that should be included. 

The estate planning attorneys with Select Law Partners PLLC are highly experienced with the complexities and emotional nature of estate planning. If you would like to learn more about how we can help, use our online contact form or call us at (855) 541-4867 to schedule a consultation.