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Creating a Durable Power of Attorney for Health Care

Who decides whether I should have this document?

Only you may decide whether you should have a durable power of attorney for health care. Your decision must be voluntary. The witnesses and the notary public who sign your document attest that you created and signed the document freely, and not under or subject to duress, fraud or undue influence. You should never sign a durable power of attorney for health care document under pressure or coercion to sign.

Health care providers may not interfere with your durable power of attorney for health care rights under Ohio law. Under ORC section 1337.16(A), health care providers may not require you to create, to not create, to revoke, or to not revoke a durable power of attorney for health care as a condition to be admitted to a facility, to be provided health care, to be covered by insurance, or to receive benefits.

 

Who may have a durable power of attorney for health care?

If you are an Ohio resident who meets all of the following criteria, you may execute a durable power of attorney for health care:

  • you must be at least eighteen years old;
  • you must be of sound mind; and
  • you must not be under or subject to duress, fraud, or undue influence in executing the document.

 


What does it mean to be "of sound mind?"

Ohio courts have not decided the exact meaning of "of sound mind" in this context. The phrase is not defined in the durable power of attorney for health care statute (ORC section 1337.12). However, Ohio courts generally apply a functional test. A person of sound mind must have the ability to understand and to communicate the decision to execute a durable power of attorney for health care and the effect of the document. Mental illness alone, even having a legal guardian, does not necessarily mean that you are not "of sound mind" for the purposes of executing a durable power of attorney for health care. However, these are factors that could later be used to challenge your document.

Given Ohio courts' functional test, a working definition of "of sound mind" would be:

  • at the time you execute the durable power of attorney for health care, you have the capacity to make informed health care decisions for yourself; and
  • you understand the basic purpose of the document you are signing, and the consequences of signing the document.

 


What does it mean to "execute" a durable power of attorney for health care?

To execute a durable power of attorney for health care document means doing all of the following:

  • properly completing the document;
  • either signing the document or acknowledging your signature in the presence of a notary public or two witnesses who qualify as notary or witness under Ohio law;
  • having the document signed by either a notary public or two witnesses who qualify as notary or witness under Ohio law; and
  • dating the document.

 


Who is qualified under Ohio law to witness my document?

Any person may sign your durable power of attorney for health care as a witness if that person:

  • is at least eighteen years old;
  • is not related to you by blood, marriage or adoption;
  • is not named in your durable power of attorney for health care document as your agent, or as an alternate agent;
  • is not your attending physician;
  • is not the administrator of a nursing home in which you receive care; and
  • does not have a court-appointed guardian.

 

By signing a durable power of attorney for health care either as a witness or a notary, the witness or notary attests that you appear to be of sound mind and are not under or subject to duress, fraud or undue influence. The witness or notary must believe that you understand the document and the consequences of signing and are signing freely without coercion or pressure to sign.

 

Whom should I choose as my agent?

It is important to give careful thought to choosing your agent. You should only choose someone you know well and someone you trust,such as a trusted relative or friend. You should feel comfortable discussing all aspects of your health care with your agent. Your agent must be willing to serve as your agent and should be willing to listen to your health care wishes and to act accordingly, even if the agent might disagree with your wishes. For some people, it is important to choose an agent who has health care values and treatment preferences that are similar to their own. For others, this is less important.

When your durable power of attorney for health care springs into effect, your agent will have access to all information about your medical condition and treatment options. Your agent will discuss your medical condition with your doctors and other health care providers and will make all medical and mental health treatment decisions for you.

 

Are there people I may not name as my agent?

Yes. You may not name as your agent any of the following people:

  • a person who is under age eighteen;
  • a person who has a court-appointed guardian;
  • your attending physician;
  • the administrator of a nursing home in which you are receiving care;
  • an employee or agent of your attending physician, unless you are related to that employee or agent by blood, marriage or adoption, or you are members of the same religious order; or
  • an employee or agent of any health care facility in which you are being treated, unless you are related to that person by blood, marriage or adoption, or you are members of the same religious order. For example, you may not name your case manager as your agent unless you are related to your case manager by blood, marriage or adoption, or you are members of the same religious order.


To avoid conflict of interest, you also should not name as your agent the owner or operator of a residential facility in which you live, unless you are related to that person by blood, marriage or adoption, or you are members of the same religious order.

 

When does my durable power of attorney for health care expire?

The answer to this question depends on what you have written in your durable power of attorney for health care. If the document does not contain an expiration date, it will not expire unless you execute a new document or you revoke the document.

If your durable power of attorney for health care states that it will expire on a certain date or in a certain number of years, then the document will expire on that date, unless on that date you lack the capacity to make informed health care decisions, as determined by your attending physician. In that case, your durable power of attorney for health care will continue in effect until you regain the capacity to make your own health care decisions, and then it will expire. You may still revoke your durable power of attorney for health care, even if you have lost capacity to make your own health care decisions.

 

What is the legal language at the end of the document?

The law requires that pre-printed durable power of attorney for health care forms include the language of ORC section 1337.17, which describes the legal limits on your agent's authority to make certain kinds of health care decisions.

 

Are there limits on my agent's authority to make health care decisions for me?

Yes, there are limits to your agent's authority. Your agent may not refuse or withdraw life-sustaining treatment unless:

you are in a "terminal condition" as determined by your attending physician, or you are in a "permanently unconscious state" as determined by your attending physician and verified by a second physician; and
in the case of a permanently unconscious state, the consulting second physician must be qualified to make that determination ("qualified to determine" a permanently unconscious state is described in ORC section 2133.13(B)(2)); and
the attending physician determines that there is no reasonable possibility that you will regain the capacity to make informed health care decisions.
Similar restrictions apply to refusal or withdrawal of "comfort care" (any treatment that diminishes pain or discomfort). The agent may refuse or withdraw nutrition or hydration only if your durable power of attorney for health care includes your express language, printed in capital letters and initialed by you, to allow your agent to refuse or withdraw comfort care.

You can have both a valid durable power of attorney for health care and a valid living will at the same time. However, your living will would supersede (it would control or "trump") your durable power of attorney for health care wherever the two documents conflict or disagree, if you are in a terminal condition or in a permanently unconscious state.

Other restrictions may apply if you are pregnant. The agent may not refuse or withdraw health care if that would terminate the pregnancy, unless:

  • there is a substantial risk to your life; or
  • your attending physician and a second physician determine that the fetus would not be born alive.


These and other health care treatment issues are difficult for many people to think about and to talk about. It is important to consider these issues and to make sure that you understand what decisions the durable power of attorney for health care law allows your agent to make, what decisions it does not allow, and what may happen in case such a decision becomes necessary. You should read and understand the legal notice included in all standardized durable power of attorney for health care forms.

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