Durable Power of Attorney for Healthcare in Washington, D.C.: Healthcare Directives
You can plan ahead effectively for healthcare decisions with a durable power of attorney that reflects your wishes and complies with local law. Kevin C. Martin, Attorney at Law, PLLC, helps individuals and families prepare a durable power of attorney for healthcare in Washington, DC.
What Is a Durable Power of Attorney for Healthcare?
A Durable Power of Attorney for Healthcare is a legal document that allows a competent adult to designate someone to make healthcare decisions on their behalf if they become unable to make or communicate those decisions themselves.
In Washington, D.C., the governing statute is D.C. Code § 21-2205. It allows a competent adult to designate an individual to make healthcare decisions if the principal becomes incapable of making or communicating a particular healthcare decision because of mental disability.
At Kevin C. Martin, Attorney at Law, PLLC, we help individuals and families in Washington, D.C., prepare healthcare directives that reflect their wishes and comply with applicable D.C. requirements.
What Makes a Power of Attorney for Healthcare Durable in D.C.?
D.C. law requires the document to clearly state that the person creating it intends for the designated attorney-in-fact to have authority to make healthcare decisions and that the authority will continue even after the principal’s subsequent incapacity.
D.C. Code § 21-2205 specifically provides that the document must contain language identical or substantially similar to either:
“This power of attorney shall not be affected by the subsequent incapacity of the principal”
or:
“This power of attorney becomes effective upon the incapacity of the principal.”
The D.C. statute also imposes specific execution requirements. They include:
- The document must be dated and signed by the principal and two adult witnesses.
- The witnesses must affirm that the principal was of sound mind and free from duress when signing.
- Neither witness may be the principal, the principal’s healthcare provider, or an employee of the healthcare provider.
- At least one of the two witnesses must also be unrelated to the principal by blood, marriage, or adoption and must not be entitled to inherit from the principal under a current will or by operation of law.
These requirements make proper execution especially important when preparing a DPOA-HC in Washington, D.C.
Steps to Creating a Durable Power of Attorney for Healthcare in D.C.
Creating a DPOA-HC involves more than simply choosing someone to make decisions for you. The document needs to reflect your wishes and satisfy D.C.’s execution requirements.
Choose Your Healthcare Agent
Start by deciding who you trust to make healthcare decisions if you become unable to make or communicate those decisions yourself.
Consider someone who understands your values, is willing to advocate for you, and can communicate effectively with healthcare providers. It is also worth discussing your healthcare preferences with that person before naming them.
D.C.’s statutory form also contemplates naming alternate agents if the first person designated cannot or will not serve.
Discuss Your Healthcare Wishes
Your healthcare agent may eventually have to make decisions that you have not specifically anticipated.
Talking in advance about issues such as treatment preferences, end-of-life care, and other important medical decisions can give your agent a better understanding of what you would want.
The D.C. statutory form allows the principal to include statements concerning life-prolonging care, treatment, services, procedures, and special provisions or limitations.
Prepare the DPOA-HC
The document should clearly identify the principal and healthcare agent and establish the agent’s authority.
D.C. Code § 21-2207 expressly provides that any written form satisfying § 21-2205 may be used. The statute also provides a sample form, while making clear that the sample does not prevent the use of alternative language that meets the statutory requirements.
Sign With the Required Witnesses
The principal must sign and date the document in accordance with D.C. law. You need to keep in mind the requirements set forth in the state’s regulations, especially regarding witnesses.
Give Copies to the Appropriate People
Once properly executed, keep the original in a secure yet accessible location and provide copies to your healthcare agent and others who may need to know the document exists.
You may also want your healthcare providers to have a copy so they can identify your designated agent if needed.
Review the Document as Your Circumstances Change
Healthcare preferences, relationships, and circumstances can change. Review your DPOA-HC periodically and after significant life events.
If you decide to change your healthcare agent or your instructions, make sure any replacement document is properly executed.
Common Mistakes to Avoid When Creating a DPOA-HC
A DPOA-HC can fail to accomplish its intended purpose if the document is poorly drafted or improperly executed.
One common mistake is choosing witnesses without checking the requirements set forth in D.C. Code § 21-2205. The law imposes specific restrictions on healthcare providers, their employees, individuals related to the principal, and individuals who may inherit from the principal.
Another mistake is failing to communicate healthcare preferences with the person selected as agent. The agent may eventually need to make difficult decisions, and knowing the principal’s wishes can make those decisions easier.
It is also important to keep the document current. Changes in family circumstances, relationships, healthcare preferences, or the identity of the preferred agent may justify reviewing the document with an attorney.
What Powers Does a Durable Power of Attorney for Healthcare Grant?
The authority granted to a healthcare agent depends on the document and any limitations imposed by the principal. Under D.C. Code § 21-2206, an attorney-in-fact generally has the rights, powers, and authority relating to healthcare decisions that the principal would have under District and federal law, subject to express limitations in the DPOA-HC.
These powers include the ability to consent to, refuse, or withdraw consent for healthcare services, treatments, and procedures. The agent also has the right to review the principal’s healthcare records and receive information necessary to make informed decisions.
The statute also permits the agent to select and discharge healthcare professionals and make decisions concerning admission to or discharge from healthcare facilities.
The agent’s authority is not unlimited. If the principal remains capable of giving or withholding informed consent regarding a particular healthcare decision, the designated agent does not have authority to make that decision on the principal’s behalf.
The agent must also act according to the principal’s expressed wishes. If those wishes are unknown or cannot be determined, the agent must act in good faith based on a belief in the principal’s best interests.
The principal may also establish express limitations in the document.
How to Choose a Healthcare Agent
Choosing a healthcare agent requires careful consideration, as this person may need to make important decisions under difficult circumstances.
Look for someone you trust to respect your wishes, communicate with medical professionals, and remain available when decisions need to be made.
It is also useful to consider whether the person understands your values and is comfortable advocating for your preferences, even when other family members may disagree.
Naming an alternate agent can provide additional protection if your first choice is unavailable or unwilling to serve. The D.C. statutory form specifically provides for alternate agents.
How a Durable Power of Attorney for Healthcare Differs From Other Advance Directives
A DPOA-HC is an important part of healthcare planning, but it is not the same as other types of advance directives.
Living Will vs. DPOA-HC
A living will generally communicates a person’s treatment preferences for particular medical circumstances.
A DPOA-HC, by contrast, designates another person to make healthcare decisions when the principal becomes incapable of making or communicating a particular decision.
The two approaches can complement one another. Your estate planning documents can be structured to communicate both your preferences and who should advocate for you when you cannot do so yourself.
DPOA-HC vs. Financial Power of Attorney
A healthcare power of attorney concerns decisions about healthcare. A financial power of attorney addresses financial and property matters.
These documents serve different purposes and should not be treated as interchangeable.
For someone creating a comprehensive estate plan, it may be appropriate to address both healthcare and financial decision-making.
What Happens If You Do Not Have a DPOA-HC in D.C.?
Not having a DPOA-HC does not necessarily mean that no one can make healthcare decisions for you.
D.C. law provides a framework for substituted consent when there is no durable power of attorney for healthcare and the person’s incapacity has been certified as required by law.
The statute establishes a priority order that can include a court-appointed guardian or conservator, spouse or domestic partner, adult child, parent, and adult sibling, among others.
However, relying on a statutory priority system is different from choosing the person yourself.
Creating a DPOA-HC allows you to designate the individual you want to make healthcare decisions and to communicate your preferences in advance.
The D.C. Courts also recognize advance directives and powers of attorney as less restrictive alternatives to guardianship planning, allowing individuals to plan ahead for circumstances in which they may need assistance making decisions.
Who Should Consider a Durable Power of Attorney for Healthcare?
A DPOA-HC can be valuable for adults who want to designate someone to make healthcare decisions if they become unable to communicate their wishes.
It may be particularly important for people who have specific healthcare preferences, have concerns about future incapacity, have complicated family circumstances, or simply want greater certainty about who will advocate for them.
You do not have to wait until a medical crisis to create one. D.C. law allows a competent adult to designate a healthcare decision-maker in advance.
How Kevin C. Martin, Attorney at Law, PLLC, Can Help
Creating a DPOA-HC involves both personal decisions and D.C.-specific legal requirements. At Kevin C. Martin, Attorney at Law, PLLC, we help clients in Washington, D.C., incorporate healthcare decision-making into a broader estate plan.
We can assist with reviewing your circumstances, identifying the person you want to designate, preparing the appropriate documents, and making sure the execution process complies with applicable D.C. requirements.
Our goal is to make the planning process understandable while helping you put legally appropriate documents in place.
Contact us today to discuss your estate planning goals.
Frequently Asked Questions
What is a Durable Power of Attorney for Healthcare in Washington, D.C.?
A DPOA-HC is a written legal document through which a competent adult designates someone to make healthcare decisions on their behalf if they become incapable of making or communicating a healthcare decision. D.C. Code § 21-2205 governs its creation and execution.
How many witnesses are required for a DPOA-HC in D.C.?
Two adult witnesses are required. They must affirm that the principal was of sound mind and free from duress when signing. Neither may be the principal, the principal’s healthcare provider, or an employee of that provider. At least one witness must also be unrelated to the principal by blood, marriage, or adoption and not entitled to inherit from the principal.
Can I choose who makes my healthcare decisions?
Yes. D.C. law allows a competent adult to designate an individual to make healthcare decisions if the principal later becomes incapable of making or communicating a particular healthcare decision.
What can my healthcare agent do?
Subject to the document’s limitations, a healthcare agent may have authority to consent to, refuse, or withdraw consent to healthcare treatment; access medical records and necessary information; select or discharge healthcare professionals; and make decisions concerning admission to or discharge from healthcare facilities.
What happens if I do not have a healthcare power of attorney?
If there is no DPOA-HC and the statutory requirements for substituted consent are satisfied, D.C. law establishes a priority order for people who may make healthcare decisions on the patient’s behalf. This can include a spouse or domestic partner, an adult child, a parent, or an adult sibling, depending on the circumstances.
