What are Durable Powers of Attorney and Should I Have One?

Not in the distant past, we had a pandemic that impacted the United States and the world. A pandemic resulting from a tiny organism called a virus, or specifically, SARS-CoV-2. This virus causes the COVID-19 disease. This tiny organism, undetectable by the human eye, has the ability to render a person unconscious and debilitated without notice. In severe cases, infected persons admitted in hospitals had stayed in an ICU for weeks at a time.

COVID-19 can be transmitted without direct contact. Further, we had hospitals instituting policies mandating isolation and quarantine of infected individuals. Patients were placed in separate beds, and contact was limited to nurses, doctors, and respiratory therapists. Many of these patients were unable to communicate because they fell into comas whilst the virus ran its course and the body attempted to fight it. In such instances, the patient’s family members were unable to visit nor see or be near their loved ones… These are highly unusual circumstances that are not only emotionally devastating, but lead to legal difficulties as well.

Consider the questions of how will the necessary medical directions be communicated to hospital personnel, and how will financial matters, payment of bills, and other decisions be made and handled without conscious contribution by the patient? No one can predict such circumstances, and thus it is very valuable to prepare for such contingencies when healthy. Having a Durable Power of Attorney, (DPA), and Advanced Health Care Directive, (AHCD), allows an agent to communicate for the patient and take necessary steps in the affected person’s best interest. These documents contain the person’s written health directives and/or verbal statements of wishes.

Let’s explore the DPA in more detail. It is a document where one person gives another the authority to act in their place during an individual’s incapacity or diminished capacity. The term durable means that the power is not affected by the person’s subsequent capacity, in other words, it endures during the incapacity period. See: Probate Code Section 4629. Durable powers are grouped into two classifications, one for health care, or advanced health care directives as they are commonly known and the second for property management, or durable power of attorney for financial matters, as they are commonly referred to. The purpose of a health care durable power of attorney is to enumerate in writing, thus avoiding confusion, an individual’s wishes for their own health care, which includes the right to have life-sustaining treatment withheld or withdrawn, as a fundamental right. See. Probate Code Section 4650 et seq. Further, an individual can nominate a surrogate or agent to make health care decisions. See Probate Code Section 4641 et seq. Such a writing, or document, enables the surrogate to request, receive, examine, and access an individual’s health records. See Probate Code Section 4678 et seq. The DPA agent may then act making informed health care decisions on behalf of an individual.

California law recognizes the fundamental right of adults to make their own decisions regarding their medical care – including end-of-life decisions. Frequently these will involve the wish to have or remove life-sustaining procedures and equipment. These are very personal issues that may prevent conflict among surviving family members if decided ahead of time. See Probate Code Section 4650; Health & Safety Code Section 7185.5; repealed effective July 1, 2000; and see Bartling v. Superior Court (1984) 163 Cal. App. 3d 186. Therefore, to safeguard one’s health care decisions and financial management, a durable power of attorney and advance health care directives are highly recommended aspects of one’s estate plan.