January 17, 2023
Bill O’Leary, Esq.
Elder Care, Elder Law, Estate Planning, Power of Attorney

Avoid Disagreements Between Your Power of Attorney Holder and Health Care Proxy

A durable power of attorney and a health care proxy are two important but different estate planning documents. Both allow other people to make decisions for you in the event you are incapacitated. Because the individuals chosen will have to coordinate care with your income and resources, it is important to pick two people who can get along.A power of attorney allows a person you appoint – your agent or “attorney-in-fact” – to act in your place for financial purposes when and if you ever become incapacitated. A health care proxy (sometimes called a health care power of attorney or advance directive) is a document that gives an agent the authority to make health care decisions for you if you are unable to communicate such decisions.While the health care proxy is the one who makes the health care decisions, the person who holds the power of attorney is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but your power of attorney thinks a nursing home is the best option and refuses to pay for the at-home care. Any disagreements would have to be settled by a court, taking time and draining your family’s resources in the process.

The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible – for example, perhaps the person you would choose as health care proxy is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.

The next easiest way is anticipate and plan for the conflict by giving someone the power to settle disputes. This person should be named in the papers and could be anyone other than the named agents. The person should be authorized to consult with all the stakeholders (the family members, etc.) and then given specific authority to direct that in the case of dispute, one agent or the other will prevail. Many disputes are probably avoided by knowing that this power exists: one need not see the dog to have second thoughts when the sign shouts to beware the canine.

Finally, it’s useful for everyone to consider what might happen when dementia or some other disorder takes over for the person giving and getting authority. Especially when one spouse appoints another, age will be a factor to consider. Careful writers will consider including language to override protests in health care proxies (in Virginia, to avoid civil commitment hearings, Virginia Code § 54.1-2986.2.), and including alternate agents and the procedure for removal of impaired agents.

If you have questions about whom to name for these roles, or you haven’t yet executed these all-important documents, address these issues, and then talk with your attorney. You and your family will be happy you did.

Read more related articles at:

When a Health Care Proxy and Power of Attorney Disagree

Living Wills, Health Care Proxies, & Advance Health Care Directives

Also, read one of our previous Blogs at:

Do I Really Need a Health Care Proxy?

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