Many people create a Durable Power of Attorney for Healthcare as part of their estate plan, but are not entirely sure when it actually comes into play. A common question we hear is: Does this document give someone control over my medical decisions right away?
Generally speaking, at our office, we prepare Healthcare Power of Attorneys to take effect upon your loss of capacity, as determined by the attending physician, in writing.
A Durable Power of Attorney for Healthcare allows you to name a trusted person to make medical decisions on your behalf only if you are unable to make or communicate those decisions yourself. The key trigger is incapacity, and that determination is made by a medical professional—not by your agent or family members.
What Does “Incapacity” Mean in a Healthcare Context?
In health care situations, incapacity does not mean disagreement or temporary discomfort. It means that you are unable to understand the nature and consequences of health care decisions or unable to communicate your wishes.
This might occur due to:
- Serious illness or injury
- Loss of consciousness
- Advanced dementia
- Medical emergencies requiring immediate decisions
In many cases, incapacity may be temporary. The durable power of attorney is designed to step in during those moments and step back once you regain capacity.
Who Determines Incapacity in Washington?
In Washington State, incapacity for healthcare purposes is determined by a licensed physician. The determination is based on medical judgment, not personal opinion.
Your chosen healthcare agent cannot declare you incapacitated, and neither can a family member. This safeguard protects your autonomy and ensures that your wishes remain in your control for as long as possible.
Once the doctor determines that you lack capacity, your agent’s authority begins. If you later regain capacity, your authority automatically resumes, and your agent’s authority pauses.
