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Frequently Asked Questions Regarding Powers of Attorney, Advance
Medical Directives, and DNO's
1.
What is a power of attorney?
A power of
attorney creates a relationship whereby the grantor of the power
authorizes the grantee of the power to perform certain acts on behalf
of the grantor. The grantor of the power of attorney is generally
referred to as the "principal." The grantee of the power
is generally referred to as the "agent" or "attorney-in-fact."
A power of
attorney may be general in that it grants authority to the agent
to "do all things which the principal could do acting for himself"
or limited such that it restricts the powers that the agent or attorney-in-fact
is given by the principal.
Because at
common law, the disability of the principal terminated the agent's
power, it is critical that language be included in the power of
attorney indicating an intent that the agent's authority survive
the principal's disability. When this language is used, a "durable"
power of attorney is created.
Death of
the principal or agent will terminate the power of attorney.
The terms
of the instrument define the scope of the agent's power. Thus, a
power of attorney is a useful method for dealing with the possibility
of a future incapacity.
2.
What is an advance medical directive and a health care power of
attorney?
The Virginia
Health Care Decisions Act permits a competent adult (referred to
as the "declarant") to make two different kinds of advance
directives regarding health care. The first type of directive expresses
the declarant's intentions regarding "life-prolonging procedures"
when the declarant is in a "terminal condition" as defined
in the Act. The second type of directive appoints an agent to make
health care decisions for the declarant in the event the declarant
is incapable of doing so, and is referred to as a "health care
power of attorney."
It is advisable
to make the advance directives in writing. The Virginia Health Care
Decisions Act suggests a form for such documents. A written advance
directive must be signed by the declarant in the presence of two
subscribing witnesses who are not blood relatives or the spouse
of the declarant.
An advance
medical directive can be revoked in a number of ways. The declarant
can do so in writing, by physical destruction of the advance directive,
or by oral expression of his or her intent to revoke.
3.
What happens if I don't have an advance directive and cannot make
an informed decision?
The Virginia
Health Care Decisions Act contains specific rules for decisionmaking
by the physician when there is no advance directive and the patient
is not capable of making a decision. The physician may provide,
withhold, or withdraw medical care upon the authorization of the
following persons in the specified order of priority: (a) a guardian
or committee; (b) the patient's spouse unless a divorce is pending;
(c) an adult child of the patient; (iv) the parent of a patient;
(v) an adult sibling of the patient; (vi) any other relative in
the descending order of blood relationship.
The Act contains
provisions for decisionmaking when two or more persons in a particular
class disagree and also identifies certain procedures that may not
be performed under the direction of a surrogate under the Act.
4.
What is a durable do not resuscitate order?
Under the
Virginia Health Care Decisions Act, a physician may issue a "Durable
Do Not Resuscitate Order" (DDNR) upon the patient's request.
This order allows emergency medical services personnel to withhold
cardiopulmonary resuscitation in the event of a cardiac or respiratory
arrest. The DDNR must be on a form approved by the Virginia Board
of Health. The DDNR must be requested by the patient from the physician.
It cannot be drafted by an attorney.
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information contained in these web pages is not legal advice. The
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