What is a Medical Power of Attorney?
A medical power of attorney in Colorado is legal document that enables an individual, also known as a principal, to select the person they trust most to speak on their behalf when it comes to medical decisions. This may be due to the individual being unable to communicate legally, as a result of reasons such as being in a coma, being unconscious or being in a state of mental unawareness.
This document is especially important in Colorado for people who are sick, elderly or nearing the end of life, as it provides peace of mind in the event they cannot speak for themselves. This person will be able to carry out the decisions the principal would wish if he or she were capable of doing so.
A medical power of attorney can cover a range of medical decisions . They are often combined with a living will, which provides specific declarations on the kinds of actions that the principal would prefer in response to a particular set of circumstances.
Some of the situations covered under a medical power of attorney include the power to give consent for the following:
Under Colorado medical power of attorney requirements, the principal can specify whether the agent has full or partial authority to make these decisions. You might give full consent to certain treatment decisions while just granting partial consent to others.
It is recommended that principals have a medical power of attorney in place no matter what their age to give them freedom of choice and peace of mind regarding any future medical needs. Having this agent designated allows for your family or loved ones to act on your behalf, and can also save years of potential legal battles over your care and finances.
Requirements for a Valid Colorado Medical Power of Attorney
For a medical power of attorney to be valid in Colorado, it must appoint an agent aged 18 or older to make medical decisions on behalf of the principal. The requirements for a valid agent are stated in Colorado Revised Statute § 15-18-104.
The document must be signed by both the principal and agent. If the principal cannot sign the document, then the agent or other individuals present may sign on behalf of the principal in the presence of a notary public or two witnesses. For the agent to be legally permitted to make decisions for the principal, the medical power of attorney document must either contain an express appointment of the agent to act or must name an alternative agent to act if the principal is unable to express his or her wishes. The requirements for the witnesses have been clarified by C.R.S. § 15-18-104(2). Either two witnesses aged 18 or older must sign the document and attest that in their opinion the principal has the ability to understand the nature of the transaction, or one dental hygienist and one dentist must sign the document and attest to the genuineness of the advance medical directive. A witness may not be an individual responsible for paying for a portion of the principal’s medical care, an agent under the document, a health care provider for the principal or a parent or sibling of the principal.
Deciding on an Agent for Your Medical Power of Attorney
Selecting the right agent for your medical power of attorney is critical and should not be taken lightly. You can designate anyone as your agent. However, you should choose someone who you know will act in your best interest. The person you select as your agent will have the ability to make decisions regarding your medical care and treatment if you are no longer able to do so.
Your agent should consider not only your current wishes, but your wishes moving forward, including your religious and spiritual beliefs and your overall life goals as they pertain to your health care. Considering that the individual you chose as agent may at some point need to make difficult, life altering decisions it is important that you select the individual who will be most sympathetic to your needs and beliefs in such times.
While any individual who is both 18 years of age and medically competent can serve as your agent, spouses, adult children, close relatives and trusted friends are commonly selected. If you have specific or complicated additional needs you may want to consider appointing more than one agent, or appointing an alternate agent if your primary agent is unable to serve.
Regardless of who you chose as your agent, be certain that they are someone who is not afraid to advocate on your behalf, even in difficult situations.
How to Create a Medical Power of Attorney in Colorado
The process of creating a medical power of attorney (POA) in Colorado is fairly straightforward and involves choosing an agent, filling out specific forms, and finally executing and signing the documents. It is important to note that although medical POAs are common legal documents, they are not formalized through the court system and do not require oversight from the court. Nevertheless, it is still necessary to make sure that the forms are accurately completed, which will typically require the skillset of a qualified and experienced estate planning attorney.
Colorado residents typically initiate the process by selecting the preferred medical agents for themselves to be appointed under the document. The medical agent may be a spouse, child, or other trusted party. Once the agent has been selected, Colorado law requires that the principal draft a power of attorney as follows:
If the POA is revoked, it must be removed from the principal’s medical records and the agent must be notified . An executor or agent appointed by a previous version of the power of attorney cannot be held responsible for actions taken while the document was in force; however, a condition that should be avoided is naming an individual who acted previously as an agent for the principal, as this can easily lead to conflict and confusion.
The medical POA document can be found on the Denver Bar Association website or at the office of any Colorado estate planning attorney. Once the original document has been signed and completed, the copies must be immediately provided to the named agent, as well as any healthcare providers or medical facilities with which the principal is known to have had any contact. POA’s do not need to be recorded like basic powers of attorney do, and they can be enacted at any time. If the principal wishes to terminate the document, the revocation must be done in writing, and the medical POA should be removed from their medical records.
Common Pitfalls to Avoid
Few people enjoy thinking about death or disability, and that may be why many make preventable mistakes in drafting their medical power of attorney. Here are some of the most common issues that arise:
Being Too Specific in Medical Decisions: A power of attorney should leave as much discretion as possible with your agent. An advance medical directive allows you to specify what you do and do not want. But if you give a laundry list of procedures, the medical agent must follow this list instead of exercising his/her own judgment. This may not in fact reflect your wishes.
Appointing More Than One Agent: Some people will appoint a husband and wife as co-agents. This may seem like a good idea, but if they ever divorce, you will need to try to have the document amended. It’s better to choose one. There’s also the risk that one agent will follow the other’s wishes, whether rightly or wrongly. With two, there’s also the potential to confuse hospital staff.
Not Appointing a Back-Up or Successor Agent: It is always wise to appoint a second agent, in case the first one can’t or won’t serve. It’s also a good idea to make sure the first agent is aware of at least the existence of the document. When you are incapacitated, there might be a delay in letting the power of attorney take effect, and doctors might not wait. Appointing a second agent would remedy this problem.
Appointing Someone with Conflicting Interests: There are certain individuals who should not be appointed as medical agents because it is against their own interests. For example, someone who has a vested interest in a person’s estate shouldn’t be appointed as the agent, as their decision might be clouded by their desire to benefit. The same is true for any person who stands to gain from the withholding or withdrawal of life support.
Failing to Seek Help from an Elder Law Attorney: Drafting a power of attorney needs attention to detail. It helps to see an elder law attorney for guidance on appointing the right agent and understanding the consequences of different decisions.
Frequently Asked Questions Regarding Medical Power of Attorney in Colorado
Q: Are medical powers of attorney effective in Colorado?
A: Medical powers of attorney are effective in Colorado. Like all other powers of attorney used in the state, medical powers of attorney are considered durable in Colorado. They remain effective even if your doctor believes you have lost your mental capacity. Your agent can only act in accordance with your wishes, so they do not have free rein over your care.
Q: Can I change my medical power of attorney in Colorado?
A: In Colorado, you always have the right to amend or revoke your medical power of attorney. You can revoke it for no reason whatsoever or because you want to replace your agent with someone else. The process to do so is the same as with other types of power of attorney: you sign a document that revokes the previous power of attorney and give copies to your current agent as well as any healthcare providers. Even if you just want to revoke the current agent and not the entire document , you still must go through this process to do so.
Q: What happens if both my and my spouse’s medical power of attorney names the same agent?
A: You may leave your medical power of attorney document completely up to you and your spouse as to who should act for you when the time comes. This means you could name the same agent on either of your documents. Doing so creates a priority for that named agent, but not an automatic situation wherein that agent would make healthcare decisions for both of you with no discussion between either party. The agent is empowered to decide based on how you’d want things if you could choose for yourself, which would include seeking input from either of you.
Q: How soon can a healthcare provider follow my medical power of attorney instructions?
A: Since your medical power of attorney is always effective, even if you are not able to act for yourself for any reason, your healthcare provider can follow the instructions given by your agent right away. Even so, the healthcare provider or other healthcare facility can check in with your agent to verify their authority to act for you. However, if the healthcare provider has reason to doubt that you’re unable to act for yourself and that your agent is acting in accordance with your wishes, they can refuse to follow directions until such issues can be addressed.