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Horizon Elder Law & Estate Planning Blog

Thursday, November 15, 2018

Can a Spouse Contest a Medical Power of Attorney?

Anyone can contest a Medical Power of Attorney, but the question is whether the person would succeed in contesting your wishes. Everyone has the right to make decisions related to their future medical care, including appointing a trusted person to act as their agent if they are unable to make decisions or enforce prior decisions for themselves. Therefore, if your Medical Power of Attorney meets all state laws, including the California Health Care Decisions Law, your spouse should not be able to contest your decisions.

Working with an experienced California estate-planning attorney can help ensure the documents you execute comply with all laws to ensure the documents would survive a contest by a spouse or other interested party.

Why Do I Need a Medical Power of Attorney?

A Medical Power of Attorney allows you to appoint an agent to make sensitive health care decisions for you if you are unable to do so for yourself. The power of attorney must have a “Durable” clause that specifically states the powers granted to your agent to continue even though you are incapacitated and no longer able to state your wishes for health care. A Medical Power of Attorney allows you to choose someone to speak for you when you cannot. This person can also enforce decisions you made regarding end-of-life care.

As part of your Medical Power Of Attorney, you can include an Advance Health Care Directive (AHCD) that dictates various end-of-life care decisions. With the AHCD, you can make decisions about life-sustaining procedures such as inserting a feeding tube, being placed on a ventilator, and the use of a Do Not Resuscitate (DNR) order. These decisions are extremely personal, and everyone should have the right to make those decisions for himself or herself.

By appointing an agent to carry out those decisions, you ensure that you remain in control of end-of-life care even though you are unable to tell doctors what you desire for yourself.

Why Would Someone Not Appoint Their Spouse as The Agent in a Medical Power of Attorney?

You can choose any person you wish to make health care decisions for you with very few restrictions. California law prohibits certain people from acting as your health care agent or alternate health care agent. A supervising health care provider, the operator of a care facility in which you receive assistance, or an employee of a care facility in which you receive assistance (unless the person is a spouse, relative, or co-worker) cannot serve as your health care agent. Other than these restrictions, you may choose your health care agent, even if that person is not your spouse.

There could be many reasons why someone would not choose their spouse to act as their health care agent. It is a personal choice that you should discuss with your California elder law attorney. If you do not believe your spouse could enforce your decisions regarding end-of-life care, such as a DNR order or withholding life-sustaining care, you may need to consider appointing an adult child or another person as your health care agent.

Your California Elder Law Attorney Can Be of Great Assistance

You want to ensure that your Medical Power of Attorney complies with all state laws to be enforceable. However, your California elder law attorney can also assist you in deciding who to appoint as an agent by discussing the various qualifications and duties of a health care agent. Contact a California elder law attorney at Horizon Law today to learn more.

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