A power of attorney to consent to medical care may be limited in whatever way
the person delegating the right wishes, consistent with public policy. Put
simply, a person may not use a power of attorney to force treatment decisions
that would otherwise be improper. For example, the person with a power of
attorney may not authorize active euthanasia or force the physician to provide
care that the physician would not otherwise provide.
If the person delegating the authority to consent is suffering from a terminal
illness, it is usual to state that the power of attorney to consent to medical
care is to remain in effect until revoked. It is also usual for spouses to execute
prospective powers of attorney that are of indefinite duration, called
durable
powers of attorney. A durable power of attorney remains in force if the patient
becomes legally incompetent. In some states, a power of attorney expires
when the patient is declared legally incompetent. In all states, the court may
supersede a power of attorney by appointing a guardian for the person. The
courts are interested in perpetuating the person’s wishes and will usually honor
a guardian who is proposed in the power of attorney. For the power of attorney
to be durable, it must recite that the patient wants the power of attorney to
remain effective if he or she becomes incompetent. If the person is concerned
only with temporary incapacity secondary to medical treatment, the power of
attorney to consent to medical care should have an expiration date.
A power of attorney to consent to medical treatment may be unlimited, or it
may authorize only certain medical decisions. It is even possible to execute
more than one power of attorney to consent to medical treatment, as long as
each document is limited and does not conflict with the others. This might
happen when the person executes a general power of attorney to consent to
routine medical care and a specific power of attorney to refuse or terminate
life support.
In some situations, it is difficult to determine what authority the patient
intended to delegate. The patient may have delegated the right to consent to
more than one person. The power of attorney may be inconsistent, delegating
the right to consent to only part of the necessary care or delegating the
authority to consent to improper care. A physician confronted with an
ambiguous delegation of the authority to consent to treatment or with
improper delegations should ask a court for clarification.