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> Part Two - Creating a Durable Power of Attorney
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.
If you are an Ohio resident who meets all of the following criteria, you may execute a durable power of attorney for health care:
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:
To execute a durable power of attorney for health care document means doing all of the following:
Any person may sign your durable power of attorney for health care as a witness if that person:
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.
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.
Yes. You may not name as your agent any of the following people:
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.
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.
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.
Yes, there are limits to your agent's authority. Your agent may not refuse or withdraw life-sustaining treatment unless:
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:
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.