Power of Attorney

How to Generate a Power of Attorney for Healthcare Decisions?

calendar29 May, 2023
timeReading Time: 9 Minutes
How to Generate a Power of Attorney for Healthcare Decisions?

A power of attorney for healthcare decisions is a legal record that grants someone the ability to make decisions about your health maintenance if you cannot make them yourself. It is a critical document to have in place, as unexpected accidents or medical emergencies can leave you disabled and unable to speak for yourself. The family members or healthcare providers may be able to decide your care, which can lead to conflicts and uncertainty with a power of attorney for healthcare decisions.

Making a Power of Attorney for Healthcare Decisions: An Overview

Creating a power of attorney for healthcare decisions is essential, and the process is relatively simple. Below are the steps to create a power of attorney for healthcare decisions.

  • Step 1: Choose Your Representative

The representative is the person you choose to make healthcare decisions on your behalf. It is vital to choose someone who knows you well, understands your values and wishes, and who you trust to make the best decisions for you. Your agent can be a family member, friend, or healthcare professional.

  • Step 2: Discuss Your Values and Wishes

Before creating a power of attorney for healthcare decisions, it’s crucial to have a conversation with your agent about your values and wishes when it comes to healthcare. There may be specific treatments or medical interventions you are unwilling to undergo or conditions where you would prefer not to be resuscitated. Discussing your wishes with your agent ensures they are prepared to decide based on your values.

  • Step 3: Write the Power Of Attorney Document

A power of attorney for healthcare decisions record is a legal document that specifies who your agent is and what powers they have. The document should include your name, your agent’s name, and any specific instructions or limitations on their authority. It should also include the conditions under which a power of attorney would come into effect, such as if you are incapacitated or unable to make decisions for yourself.

  • Step 4: Sign the Document

After a power of attorney for healthcare decisions record has been made, you will require to sign it in the appearance of a notary public. It ensures that the document is legally binding and enforceable. You may also want to provide copies of the document to your agent, healthcare providers, and any family members involved in your care.

  • Step 5: Keep the Document Up To Date

As your healthcare needs or circumstances change, you may require to update your power of attorney for healthcare decisions document. It’s essential to regularly review and update the document to ensure that it accurately returns your wishes and the person you have chosen as your agent. It’s also essential to keep the document safe to access in an emergency easily.

It is essential to point out that a power of attorney for healthcare decisions does not give your healthcare representative the authority to make financial or legal decisions on your behalf. If you want someone to make those decisions, you need a separate power of attorney.

Moreover, a power of attorney for healthcare decisions can be changed anytime as long as you are sound-minded. You should review your document regularly and update it if your healthcare wishes to change or your healthcare agent or alternate agent cannot fulfil your wishes.

The Critical Steps for Creating a Power Of Attorney for Healthcare Decisions

Steps   Description
  Step 1 Recognize the principal, who is the person granting the Power of Attorney.  
  Step 2 Identify the attorney-in-fact, who is the person that will act on behalf of the principal for healthcare decisions.  
  Step 3 Draft a Power of Attorney document that outlines the healthcare decisions the attorney-in-fact will be authorized to make and get it signed by the principal.  
  Step 4 Have the Power of Attorney document executed by both the principal and the attorney-in-fact in the presence of a notary public or a sub-registrar, who will witness the signing and affix their seal.  
  Step 5 Once the document is executed, the Power of Attorney becomes valid, and the attorney-in-fact can use it to make healthcare decisions on behalf of the principal if the principal cannot do so themselves.  
  Step 6 It is vital for both the principal and attorney-in-fact to review the scope and limits of the Power of Attorney carefully to ensure that they understand the decisions that can be made and the decision-making process.  
  Step 7                                                                       Healthcare providers should be informed of a Power of Attorney for healthcare verdicts. They should follow the instructions and preferences stated in the document if the principal needs help to make healthcare decisions themselves.  

Provision and Acts Included

A power of attorney for healthcare decisions is a legal document that authorizes individuals to make medical care decisions if they cannot. It includes decisions about medical treatment, hospitalization, and end-of-life care. It is a critical document that everyone should consider creating, particularly as they age or face health challenges.

The Indian legal system provides several provisions and Acts that cover creating a power of attorney for healthcare decisions. In India, the law that governs the creation of a power of attorney for healthcare verdicts is the Indian Succession Act of 1925. The act enables an individual to appoint someone else to care for their healthcare needs and medical treatment when they cannot do so themselves.

  • The Indian Succession Act, 1925

The Indian Succession Act of 1925 gives a framework for a power of attorney for healthcare decisions. The act defines a power of attorney as a legal record that enables an individual (known as the principal) to appoint someone else (known as the attorney) to function on their behalf.

Under the Indian Succession Act of 1925, a power of attorney is considered valid if it is:

  • In writing
  • Signed by the principal in the attendance of two witnesses
  • Registered with a competent authority
  • Notarized by a public notary

The act enables an individual to appoint someone else to care for their healthcare needs and medical treatment when they cannot, giving the appointee sufficient powers to decide prudently.

  • The Mental Healthcare Act, 2017

Another crucial legislation in India related to a power of attorney for healthcare decisions is the Mental Healthcare Act of 2017. This act recognizes the rights of people with mental illnesses and their autonomy in decision-making about their treatment.

The act enables individuals to create an advance directive that outlines their healthcare preferences, including treatment preferences and end-of-life care. A person can execute an advance directive when they can make decisions, and it will result when they are no longer capable of making decisions due to their mental health condition.

The advance directive must be in writing, signed by the person executing it, and attested by two witnesses. The act also recognizes an individual to create an enduring power of attorney for healthcare decisions to appoint a representative or a ‘nominated representative’ to make critical medical settlements on their behalf.

  • The Representation of the People Act, 1951

Apart from the acts mentioned above, the Representation of the People Act 1951[1] is another law in India that recognizes a power of attorney. It enables an individual to appoint an agent to vote on their behalf during an election.

The act requires a professional undertaking by a doctor to witness the execution of a power of attorney. It ensures the document is prepared and executed with total mental capacity and consent.

Need/Importance of Power of Attorney for Healthcare Decisions

  Need/Importance of Power of Attorney for Healthcare Decisions     Description
  Whom does it need? A person unable to make medical decisions for themselves due to incapacity or incompetence may need a Power of Attorney for healthcare decisions to ensure that their best interests are considered.  
  What is allowed? A Power of Attorney for healthcare decisions allows the designated attorney-in-fact to make decisions on behalf of the principal, who may be unable to do so for themselves due to illness, injury, or disability.  
  How is it useful? Power of Attorney for healthcare decisions can be helpful in situations where decisions need to be made quickly, such as in an emergency room or intensive care unit.  
  What it ensures? A Power of Attorney for healthcare decisions ensures that the principal’s preferences and values are respected in medical decision-making, even if they cannot express them.  
  What can it ease? Having a Power of Attorney for healthcare decisions can ease the burden on family members or caregivers, who may face difficult decisions about care and treatment options if the principal becomes incapacitated.  
  What can it prevent? A Power of Attorney for healthcare decisions can prevent conflicts and disagreements between family members or other relatives about medical decisions by providing a clear, legally enforceable mandate for decision-making.  

Case Laws Related

Creating a power of attorney for healthcare decisions is a critical task ensuring that an individual’s medical treatment and care preferences are respected even when they cannot make decisions themselves. In India, the legal framework for these documents is set out in the Indian Trusts Act of 1882 and the Indian Contract Act of 1872. Understanding the legal landscape in India is essential when drafting such documents. Several case laws guide the creation of powers of attorney for healthcare decisions in India.

  • Aruna Ramirez Bachan vs Union of India

One of the earliest cases to discuss a power of attorney for healthcare decisions in India is the landmark case of Aruna Ramirez Bachan vs Union of India, in which the Supreme Court of India discussed the issue of euthanasia. In this case, a nurse named Aruna Ramirez Bachan had been in a persistent vegetative state for over 30 years, and there was no hope of her recovery. The Supreme Court held that an individual’s right to life includes the right to die with dignity and that the state has to ensure that individuals can exercise this right per legal provisions. The Court also clarified that a power of attorney holder could not make decisions related to euthanasia on behalf of the individual, as it is illegal in India.

  • Kantilal Manilal vs Lalitaben (1989)

In this case, the primary matter was whether a married woman could grant a Power of Attorney without her husband’s consent. The Court ruled that a married woman had the right to give a Power of Attorney without her husband’s consent, as long as the purpose of the Power of Attorney was limited to the decision-making for her personal affairs and not the management of the couple’s property.

  • In re Srishti Kumari (2003)

The issue, in this case, the matter was whether a daughter could be appointed as a guardian of her aged mother’s person and property without obtaining a medical certificate confirming the mother’s incapacity. The Court held that in cases of elderly persons, it is usually better to obtain a medical certificate to confirm the incapacity of the aged person before appointing a guardian.

  • Balraj vs Bhagwan (2009)

In this case, whether the father’s son had the authority to make medical decisions on his father’s behalf, even though the father had not granted a Power of Attorney for healthcare decisions. The Court held that under Indian law, the next of kin has the right to make medical decisions on behalf of someone incapacitated or unable to communicate their wishes.

  • Gian Kaur v State of Punjab

Another critical case related to healthcare decisions is Gian Kaur v State of Punjab, in which the Supreme Court of India considered the issue of the right to die. In this case, the Court held that the right to life under Article 21 of the Indian Constitution did not include the right to die and that any attempt to commit suicide could be punishable by law. The Court also held that any power of attorney created to authorize euthanasia would be deemed illegal and would not be enforced by the courts.

  • Samira Kohli vs Prabha Manchanda

A more recent case, which guides creating powers of attorney for healthcare decisions in India, is Samira Kohli vs Prabha Manchanda. In this case, the Delhi High Court considered the validity of a power of attorney created by the petitioner’s mother. A power of attorney authorized the petitioner to make healthcare and medical decisions on behalf of her mother. The Court held that the power of attorney was valid and that the petitioner had the authority to make decisions on behalf of her mother.

The Court also laid down guidelines for creating such powers of attorney. The guidelines require that a power of attorney be executed in two witnesses’ presence. It must be in writing and respecify the nature and extent of the authority given to the attorney-in-fact. The document must also clearly state the circumstances under which a power of attorney comes into effect and the duration of the authority granted.

The Court also held that the authority given under a power of attorney must be exercised following the wishes and preferences of the individual granting a power of attorney, as far as possible. The attorney-in-fact must respect the individual’s autonomy and ensure that their medical treatment and care preferences are followed.

Thus, creating a power of attorney for healthcare decisions in India requires careful consideration of the individual’s legal framework and specific circumstances. It is essential to consult with a legal expert to ensure the document is valid and effective. The case laws discussed above guide the critical issues related to powers of attorney for healthcare decisions in India and highlight the importance of respecting an individual’s autonomy and correct to make decisions about their medical treatment and care.

Conclusion

In conclusion, creating a power of attorney for healthcare decisions is crucial in ensuring your wishes are respected and your healthcare needs are met, even if you cannot speak for yourself. Following the steps outlined above and having an open and honest conversation with your agent about your values and wishes, you can know that your healthcare decisions are in good hands.

Thus, creating a power of attorney for healthcare decisions is an essential step everyone should consider. It enables you to appoint a trusted individual to make critical medical decisions on your behalf when you cannot do so. Indian laws provide clear guidelines on the creation of a power of attorney. Knowing the provisions and Acts in place reduce confusion and legal issues, ensuring the document is valid and legally binding.

Read Our Article: What Is A Power Of Attorney And Why Is It Important?

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