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Using Your Durable Power of Attorney for Health Care

What authority does my agent have under my advance directives document?

If your attending physician has determined that you lack the capacity to make informed health care decisions for yourself, the general rule is that your agent may do anything you could have done had you not lost decision-making capacity. Your agent may rely on your durable power of attorney for health care to make decisions for you, if all of the following conditions are met:

  • a copy of your durable power of attorney for health care has been given to the agent, and it is properly completed;
  • your durable power of attorney for health care substantially complies with all legal requirements; and
  • you have not revoked your durable power of attorney for health care.


An exception to these conditions is when your durable power of attorney for health care document states some other conditions and these other conditions are consistent with Ohio law. In that case, the conditions written in your durable power of attorney for health care will control.

A second exception is that your agent does not have authority to withdraw informed consent to any health care to which you previously consented, unless at least one of the following applies:

  • a change in your physical condition has significantly decreased the benefit of that health care to you; or
  • the health care is not, or is no longer, significantly effective in achieving the purposes for which you consented to its use.


For more information about your agent's authority to make decisions about life-sustaining treatment, you should read the notice attached to every standardized durable power of attorney for health care form.

 

How long may my agent continue to make health care decisions for me?

Your agent may continue to make health care decisions for you until one of the following happens:

  • you regain the capacity to make health care decisions for yourself, as determined by your attending physician;
  • you revoke your durable power of attorney for health care;
  • you revoke all or part of your agent's authority; or
  • your guardian modifies or revokes your durable power of attorney for health care.


Once your attending physician determines that you have regained the capacity to make your own health care decisions, then you resume doing so, and your agent no longer has any legal authority to make those decisions for you.

 

What are health care providers' obligations under my advance directives?

The federal Patient Self-Determination Act requires hospitals and some other health care providers that receive Medicare or Medicaid funding to give each patient written information about rights under state law to have advance directives, to ask whether the patient has advance directives, and to record the patient's response in his medical record. If the patient has advance directives, provider staff may advise the patient of the right to produce a copy of the document for the medical record. Providers may not condition care or otherwise discriminate based on whether or not a person has executed an advance directive.

Under Ohio law, once your durable power of attorney for health care springs into effect, and if your health care provider has a copy of your document, then the health care provider is required to give your agent all information that your agent needs to make informed health care decisions for you. Your health care provider is required to do all of the following:

  • document your attending physician's determination that you lack the capacity to make informed health care decisions for yourself, if the provider has legal access to that information;
  • if your durable power of attorney for health care document is given to the provider, the provider must place it in your medical record;
  • determine whether your durable power of attorney for health care substantially complies with ORC section 1337.12;
  • obtain informed consent or refusal of consent from your agent regarding all health care treatment that is offered to you, and to document that consent or refusal in your medical record; and
  • if you have revoked your durable power of attorney for health care, to document the revocation in your medical record and no longer rely on the revoked document.


Any instructions that you state in writing in your durable power of attorney for health care are instructions to your agent only and are not instructions to your health care providers. Therefore, your health care providers may not rely on your written instructions. The health care provider must, however, allow your agent to make the decisions about your health care.

If you inform a health care provider orally or in writing that you revoke your durable power of attorney for health care, then the health care provider may no longer rely on that document. The provider is required to document the revocation in your medical record. A witness to the revocation may also communicate the revocation to your health care provider, with the same effect as if you had notified the provider of the revocation.

 

Are my agent's actions legally binding?

As long as you lack the capacity to make informed health care decisions for yourself, as determined by your attending physician, all actions of your agent done in good faith while acting under the authority of your durable power of attorney for health care are legally binding on you, your heirs and personal representatives to the same extent as if you had the capacity and had done those acts yourself.

 

What if my agent refuses to act according to my advance directives?

If your agent's actions are not consistent with your wishes, then you may either revoke that person's authority to act as your agent, or you may revoke your entire durable power of attorney for health care document. You have these options even if your attending physician has found that you lack capacity to make health care decisions.

By law, your agent is not subject to criminal prosecution or professional disciplinary action, and will not be held liable for money damages in a civil lawsuit, for health care decisions made in good faith while acting under the authority granted by your durable power of attorney for health care. You may not sue your agent for health care decisions the agent made in good faith while acting under the authority granted by your durable power of attorney for health care.

 

What if my health care provider refuses to comply with the decisions of my agent?

Your attending physician or a health care facility in which you are confined may refuse to comply, or to allow compliance, with the decisions of your agent under your durable power of attorney for health care based on a "matter of conscience or on another basis." An employee or agent of the attending physician or of the health care facility may refuse to comply only based on a "matter of conscience" and for no other reason. For more information, see ORC section 1337.16(B)(1).

If either your attending physician or the health care facility is not willing or able to comply, or to allow compliance, with the instructions of your agent regarding your health care, then your agent may have you transferred to the care of another physician or health care facility that is willing and able to comply, or allow compliance. In connection with your transfer, the transferring physician or health care facility may not prevent, attempt to prevent, unreasonably delay, or attempt to delay, your transfer to the care of another physician or facility. ORC section 1337.16(B)(2).

If the instruction of your agent is to use or continue life-sustaining treatment, then the attending physician or health care facility that is not willing or able to comply or allow compliance with that instruction is nevertheless required to use or continue such life-sustaining treatment, or allow it to be used or continued, until you can be transferred to another physician or facility.

A durable power of attorney for health care document does not affect or limit the authority of a physician or a health care facility to provide health care to a person in an emergency, consistent with reasonable medical standards that apply to an emergency situation.

 

May my doctor or other provider be sued in connection with advance directives?

The general rule is that a physician is not subject to criminal prosecution, professional disciplinary action or civil liability in money damages for actions taken in good faith and in reliance upon the health care decisions your agent makes for you according to your durable power of attorney for health care. For more information about physician liability, see ORC section 1337.15. However, no health care provider is immune from criminal or civil liability, or from professional disciplinary action, for actions that are outside the scope of the health care provider's authority. A physician or other health care provider, and their employees and agents, may be held civilly liable for money damages if both:

the liability arises from a negligent action or omission in connection with the medical diagnosis, care or treatment of a principal under a durable power of attorney for health care, or for any deviation from reasonable medical standards; and
the negligent action or omission, or the deviation, caused or contributed to the principal's injury or wrongful death.


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