Using a form for a Health Care Power of Attorney is riskier than having an experienced estate planning attorney assist you in preparing the document. Most common problems with self-prepared forms include failing to complete in a legally valid manner, making conflicting or unclear directions to your agent, or failing to provide adequate guidance. I have personally reviewed hundreds of self-prepared legal forms. Many of these forms have contained errors, omissions, and conflicting guidance.
A Health Care Power of Attorney (HCPOA) is a document which allows you to appoint an agent to make health care decisions for you if you are unable to make them for yourself. By form, I am referring to a printed fill-in the blank or check the box document. Forms to prepare a HCPOA are available from many sources. Many can be obtained for free. In Wisconsin a form may be obtained from the Department of Health Services on their web page, https://www.dhs.wisconsin.gov/forms/advdirectives/index.htm. Forms are also available from several health care providers and other nonprofit public service organizations.
PROS AND CONS OF USING THE STATE OF WISCONSIN POWER OF ATTORNEY FOR HEALTH CARE FORM
The following are some of the positive aspects of using the State of Wisconsin form:
- It can be prepared for free.
- If the form is completed according to the directions, you will have at least accomplished naming an agent to make health care decision on your behalf.
- Your health care agent will be provided guidance regarding your wishes in certain limited situations.
- It may help you to avoid a court guardianship proceeding.
The following are potential problems with using the State of Wisconsin form:
- The form is not properly prepared and witnessed.
- The “NO” box is selected regarding admission to a nursing home without understanding the consequences.
- Guidance written in the “Statement of Desires, Special Provisions or Limitation” portion of the form conflicts with other parts of the form or provides unclear guidance.
- Insufficient guidance is provided to your agent. If no guidance is provided in a certain area, the agent should make the decision on “what he or she believes to be in [your] best interest.” In other words, the agent is authorized to make the decision based on what he or she believes is in your best interest rather that what you would actually want.
POTENTIAL PROBLEMS WITH COMPLETION OF OTHER WIDELY AVAILABLE FORMS
First, the organizations that make these forms available should be complimented. A great public service is being provided by educating the public to the importance of every adult having a HCPOA. Many of the forms I have reviewed have include some well-drafted provisions. They also have encouraged people to have important end of life discussions with their loved ones. In most cases the use of one of these forms is preferable to not having a HCPOA at all. The following are some of the issues I have observed regarding some of these available forms:
- For Wisconsin residents, make sure the signing and witnessing of the form complies with Wisconsin law.
- Watch out for provisions which allow a health care provider to limit the decisions of the health care agent.
- Be aware that certain directives may conflict with each other. One issue I have seen deals with the direction to treat curable conditions even when a terminal condition is present. I have reviewed many forms that state no treatment is desired if death is close but also state curable conditions should be treated.
- The form may contain either too restrictive guidelines for the agent or lack of enough guidance to allow your agent to make the decision you would want.
You should have a HCPOA prepared by an experienced estate planning attorney as part of establishing a comprehensive estate plan. By establishing a HCPOA at the same time as obtaining the other documents you need, the incremental cost should be less than if the HCPOA is obtained separately. This cost of preparation is minimal compared to the thousands of dollars that may be saved in unnecessary legal fees or medical costs for unwanted care.
In an emergency you may need to execute a form without the assistance of an attorney. In those cases make sure to follow the directions carefully and then have your document reviewed by an attorney as soon as possible.