Should I Elect my Spouse as my Durable Power of Attorney for Health Care?
By Robert H. Gillespie, LMSW, Social Worker
Regardless of marital status and health/medical condition, it is advisable for all individuals 18 years of age and older to have a durable power of attorney for health care (DPAH). By definition, a durable power of attorney for health care is a binding, legal agreement one signs so that in the event he/she is unable to make medical decisions for him/herself, another person is directly chosen to speak and make decisions with health care providers on the DPAH holder’s behalf. The DPAH is also referred to as a “health care proxy.” The DPAH becomes valid only if the individual becomes unable to make decisions for him/herself and becomes invalid once the patient regains the ability to make decisions for him/herself.
In Georgia*, if a DPAH is not present, most physicians and health care providers follow the idea of “succession.” Briefly defined, succession is the collaboration with individuals most closely related to the patient in question (whether through blood or legal relationship) and using the related individual(s) as a proxy health care decision maker, as the patient in question is unable to speak for him/herself. Usually succession follows a certain pattern with a spouse being considered the closest next of kin, followed by adult children (blood related and stepchildren), parents (blood related or stepparents), adult siblings (blood and stepsiblings) and so on. Thus, using the idea of succession, an individual is not required to appoint his or her spouse as “power of attorney for health care.”
For example, if a valid power of attorney for health care is not provided to the attending physician, the spouse may be asked to make health care decisions for the patient in question. If the spouse is not specifically designated as the DPAH, then the attending physician, due to succession, may also consider other family members’ opinions as well. If there is a disagreement between the spouse and other family members, the attending physician may be less likely to follow what the spouse requests. This is because succession is not as binding as the durable power of attorney for health care; remember, a DPAH is someone directly appointed by an individual in the event that individual is unable to make decisions for him/herself. This, however, does not mean the spouse has the same legal rights as a power of attorney.
Without the durable power of attorney for health care, the doctor may be forced to consider all perspectives greatly impacting what treatments may or may not be provided to the patient in question. If a compromise between the spouse (if not elected DPAH) and other family members is not achieved, then additional measures such as lawsuits and guardianship may have to be pursued to grant one individual as the decision maker for a patient. So to prevent this from happening, it is advisable for all individuals who are 18 years old and older, and of sound mind have a durable power of attorney for health care.
*Georgia does not recognize “common-law” and/or same-sex marriage, so for purposes of this article “legal spouse” only refers to individuals holding a valid marriage license recognized by the State of Georgia.