Know the Law: What is a Durable Power of Attorney?

An important consideration in anyone’s estate plan is to consider appointing a trusted individual to make important health and financial decisions in any case where the testator may be incapacitated and unable to act in their best interest. One way to do this is to create a durable power of attorney in a living will which names another person as an agent or an “attorney in fact” to decide whether or not to continue with life support treatment and other important medical decisions.


In New York, Pub. Health Law §2980, et seq. Health Care Agent and Proxies details the powers of the attorney in fact, the legal requirements to create such an arrangement, when the agreement may be revoked, and the state to state applicability of the durable power of attorney. Specifically, the law allows the attorney in fact to make “Any decision to consent or refuse consent of any treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition.”


Health Law §2980 requires individuals to fill out Standard Form §2981 and name a competent adult to the position. Additionally, the form must be signed in front of two witnesses and indicate the principal wishes his or her agent be able to make healthcare decisions and that this authority begin when an attending physician decides to a medical degree of certainty the principle cannot act on behalf of himself or herself.


A principal may revoke the agreement at any time by notifying the agent or health care provider in writing of his or her intent to do so. These agreements may also be revoked if the named agent was the spouse to the principle and become divorced or another health care proxy is created. If the principal’s physician refuses to comply with the orders of the agent, the principal may be transported to another “reasonable accessed” hospital with a physician willing to follow through with the attorney in fact’s orders.


Individuals considering creating a durable power of attorney for health care proxy reasons should carefully consider who is most trustworthy to carry out decisions for him or herself in cases where he or she is incapacitated. Additionally, the principal should fully communicated to the agent the types of action he or she would like the attorney in fact in certain situations and further spell this out in writing with the durable power of attorney.


Although it may never cross our minds to plan for these types of serious medical events, some foresight and consideration are all that are needed to plan for the uncertain. By planning ahead and creating a durable power of attorney to allow a loved one or trusted person to act on one’s behalf, individuals can be more certain their decisions are carried out as they would like to see if.


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