A patient amongst other rights has the right to execute a medical power of attorney when he deems it necessary. A Medical Power of Attorney which is also called the healthcare power of attorney is a legal document that empowers or authorizes a person to take medical decisions on behalf of the patient in the event of the patient’s incapacitation. This enables the person (agent or donee) to exercise autonomy over the patient’s (principal or donor) health by deciding the treatment he or she considers appropriate for the patient.
In exercising this right, the law considers the decision of the agent as the decision of the principal and nothing more pretentious. The agent is also deemed to be acting in the best interest of the principal. As ultimate as it sounds, this power has legally recognized limitations that may stem from the operation of law or as may be clearly spelled out in the power of attorney made by the principal. In this article, we will be exploring the nitty gritty of the medical power of attorney, highlighting its validity, limitations, revocation, etc.
VALIDITY OF A MEDICAL POWER OF ATTORNEY:
For a medical power of attorney to be executed legally, the following must be followed stricto sensu:
- It must emanate from the principal to the agent.
- It must be duly signed by the parties, i.e. by the principal or an adult person as directed by the principal and the agent.
- It must be signed and notarized by a Notary Public.
- It must be signed by at least two witnesses.
WHEN IS THE MEDICAL POWER OF ATTORNEY ACTIVATED: The medical power of attorney can only be exercised when the principal is adjudged to be incapable of making his or her own medical decisions. An agent cannot, upon the execution of power of attorney, start taking decisions.
WHO CAN BE GRANTED THE MEDICAL POWER OF ATTORNEY
It is the principal who decides whom to grant the medical power of attorney, provided such persons are not limited by virtue of incapacitation. The following set of persons are commonly granted medical power of attorney.
- The Healthcare giver
- Family members
- A selected party who may not be even too close to the patient
- The powers of the agent are only activated when the principal is incapacitated: The agent can only act in line with the executed power of attorney when his principal is infirm, mentally incapacitated, or in a coma. The agent cannot upon a personal assessment of the health condition of his principal, assume his role in taking health decisions. It is rather the job of the patient’s healthcare giver.
- The agent must always act in the best interest of his principal: The currency of the power of attorney flows on the understanding that the agent is always acting in the best interest of the principal, whenever there are evidences to show otherwise, the power can be challenged. For example, an agent cannot be adjudged right for opting for blood transfusion for his principal who ordinarily would not subscribe to blood transfusion on the basis of his faith.
- It does not extend to other aspects of the principal’s life like business, properties, etc.: The Medical power of attorney is circumscribed to only the healthcare of the principal and nothing more. The agent cannot extend this power to other areas of the principal’s life, as the same will be a breach which may be actionable by the principal upon his recovery or his successors in title if he dies.
- The medical power of attorney cannot be transferred to another person: The principal of law in this regard is delegata potestas non potest delegari- no delegated powers can be further delegated. A medical power of attorney delegated to an agent cannot be delegated by the agent to another person no matter the circumstances.
- The powers of the agent do not extend to taking decisions after the principal’s death: The agent cannot take decisions concerning the patient after his or her death. His powers are only circumscribed to the pendency of his principal’s treatment and nothing more. Decisions concerning the internment and other funeral arrangements are outside the scope of a medical power of attorney. The principal may however leave instructions if he decides he wants the agent to be involved but this cannot be included in the power of attorney.
REVOCATION OF THE MEDICAL POWER OF ATTORNEY: As a general rule, only the principal can revoke a medical power of attorney. However, it can be revoked when the following happens;
- When the principal regains consciousness and is able to make his own health decisions, the agent cannot continue to act.
- By a Judge, upon an application showing that the agent is not acting in the interest of the principal. If granted, the agent’s power to act will be revoked.
IMPORTANCE OF THE EXERCISE OF THE POWER OF ATTORNEY:
- It enables the agent to decide the suitable medical care the principal should receive in terms of place of treatment, surgery, and other treatment decisions.
- This power of attorney enables the agent to choose his principal’s most preferred Caregiver.
- The Agent can access the medical records of the patient for the purpose of making the right decisions for his principal.
- It enables the agent to dictate what the principal eats, and who gains access to the patient during the pendency of the treatment as the principal would ordinarily want if he were not incapacitated.
The essence of a medical power of attorney is to ensure that the rights of the patient are guaranteed, by respecting his decisions, through his agent. For a patient not to be left at the whims and caprices of the healthcare giver or any family, it is always advised that it should be executed.
- Anne-Maria Botek, “Things you can and can’t do with power of Attorney” Aging Care Newsletter last updated 12 October, 2021.
- Werner’s Law Firm, “The Responsibilities of a Healthcare Power of Attorney” <wernalawca.com>
 Werner’s Law Firm, “The Responsibilities of a Healthcare Power of Attorney” <wernalawca.com> Accessed 26 September, 2022.
 Anne-Maria Botek, “Things you can and can’t do with power of Attorney” Aging Care Newsletter last updated 12 October, 2021, accessed on <agingcare.com>