Durable Power of attorney for healthcare - state your intentions!

You have the right and obligation to decide your own medical fate using a Living Will!

A Durable Power of Attorney for Health Care ("POA" for short") should be included in everyone's estate plan. This document - also called an "Advance Directive" or a "Living Will" is a written statement of a person's desires about continued medical treatment if he or she is personally unable to communicate those desires because of a medical disability, such as a coma. I encourage all of my clients to sign one of these at the same time they sign their trust agreement or their will.

In most states the form of these documents is set out in a statute. The law in Nevada governing a durable power of attorney for health care is found beginning at NRS 162A.700 to 162A.860.

The form itself is set forth in NRS 162A.860. The form is very good because it gives complete freedom of choice to the person signing the document.

Every statutory POA in Nevada must be in writing and

1. Signed by the Principal (the person giving the POA).

2. Acknowledged (notarized) by a Notary Public or witnessed by 2 adult witnesses who know the Principal personally.

In the durable POA the principal appoints an attorney-in-fact to make medical decisions on his or her behalf if the principal is unable to do so because of a medical disability. The meat of the POA is contained in 5 numbered paragraphs which contain statements about the principal's intent and desire. The principal is to initial a box next to each paragraph with which he or she agrees. The paragraphs are inconsistent, so the principal should not initial every paragraph.

Here are the 5 paragraphs:

Under NRS 162A.850 there are certain things to which the attorney-in-fact cannot legally consent. These include:

(a) Commitment or placement of the principal in a facility for treatment of mental illness;

(b) Convulsive treatment;

(c) Psychosurgery;

(d) Sterilization;

(e) Abortion;

(f) Aversive intervention, as that term is defined in NRS 449.766; or

(g) Any other treatment to which the principal, in the power of attorney, states that the attorney-in-fact may not consent.

2009 Amendments to Durable Power of Attorney for Healthcare Decisions Law

The durable power of attorney for healthcare law in Nevada was amended in 2009, and several new paragraphs were added to the Healthcare POA form.

Perhaps the most important of these is a written authorization for your agent to receive medical information which might otherwise be unavailable because of "HIPAA" (the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191.)

The 2009 changes to the form are so important that you should execute a new Durable Power of Attorney for Healthcare even if you already have one dated before October of 2009.

Declaration to Physicians

There is additional law in Nevada regarding withholding or withdrawal of life-sustaining treatment found at NRS 449.535 to 449.690. The statute recommends that if a principal initials paragraphs 2 or 3 in a durable POA for health care , he or she should also execute a Declaration to Physicians. The forms for these declarations are found at NRS 449.610 and NRS 449.613.

New Development - Living Will Lockbox

The Nevada Secretary of State now has a service called "The Living Will Lockbox." This is a great idea! It provides a method to file your Living Will with the Secretary of State so that it is available 24/7 online to you and your physician.

For more information, click here.

Dave Guinan or one of the other attorneys in our firm will be pleased to assist you with estate planning issues including durable powers of attorney for health care. Please click here to contact us.

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