Ohio Health Care Power of Attorney

A health care power of attorney is a document that allows you to name an agent (also known as a health care proxy or attorney-in-fact) to make medical decisions on your behalf when you're unable to make them yourself. 

Your health care power of attorney agent only has the authority to make medical decisions on your behalf when you lack decision-making capacity. Whether you possess this capacity is typically determined by a physician. 

Your agent's first responsibility is to make medical decisions according to your wishes and values. If they don't know what you'd want, then they're supposed to make whatever decision is in your best interest.

If you don't have a health care power of attorney and become incapacitated, doctors will make medical decisions in conjunction with your legal next of kin. 

In Ohio, the hierarchy is the following: 

• spouse 

• adult child, or if there are multiple, the majority of the children 

• parents 

• sibling, or if there are multiple, the majority of the siblings 

• the nearest blood or adoptive relative

In the event of your incapacity, your health care power of attorney agent would have priority in terms of decision-making authority, meaning that they would be at the top of the hierarchy. And, importantly, you could name a family member or a non-family member to be the agent.

If you haven't executed a health care power of attorney, become incapacitated, and don't have any legal next of kin, a court will appoint a complete stranger to be your guardian. This person will have the authority to make medical decisions for you, but they won't know your wishes and values. 

With this in mind, a health care power of attorney is important to have for any of the following reasons:

• You don't have any legal next of kin, and you don't want a stranger to be your guardian.

• You do have legal next of kin, but you don't want them making medical decisions for you.

• You do have legal next of kin, but none of them are willing and able to make medical decisions for you.

• You want a legal next of kin lower on the hierarchy to make medical decisions for you.

• You have multiple legal next of kin that share equal authority, and they will likely disagree over what should be done.

Here are some cases that illustrate why having a health care power of attorney is important. 

Case 1

An elderly woman is dying of stomach cancer. There's a surgery that could extend the patient's life for a couple of months. The patient does not possess decision-making capacity, but she has three children who are her surrogate decision-makers. One daughter says that her mom wouldn't want the surgery, and so is opposed to it. The other daughter says they must do everything to extend their mother's life. The son doesn't want to participate in the discussion.

This case is difficult because you have a tie. You have one daughter against the surgery, and one daughter in favor. Had the patient named someone as her health care power of attorney agent, this impasse could've been avoided.

Case 2

An elderly man suffers a catastrophic brain injury, causing him to fall into a permanent unconscious state. The patient's son has been his father's caretaker for a number of years and believes that he would want to be kept alive. However, the patient's wife disagrees. The son informs the team that though the patient and his wife are technically still married, they've been estranged for ten years. Thus, the son believes that he, and not the wife, should have the authority to make the decision.

This case is difficult because, by law, the wife is the surrogate decision-maker. Spouses trump children. But according to the son, the two have been estranged, which gives reason to think that the son has a better idea of what the patient would want. Again, this situation could've been avoided had the patient filled out a health care power of attorney.

Case 3

An elderly woman has necrosis of the left foot due to diabetes. The medical team recommends amputation. The patient adamantly refuses, even though she's informed that it could lead to a lethal infection. However, the patient also states that she doesn't want to die. To make matters worse, the medical team is unsure if she possesses decision-making capacity. 

The team has been trying to communicate with the patient's brother, as he's the only legal next of kin, but he often doesn't pick up his phone and has missed the previous two meetings at the hospital. When they are able to get in touch with him, he's indecisive. 

This case is difficult partly because the patient's brother isn't a reliable surrogate decision-maker, and he's the only legal next of kin. Had the patient named someone as their health care power of attorney agent, this situation could've been avoided. 

Now, it's possible that the patient would've named their brother as their health care power of attorney agent, in which case, it wouldn't have helped. However, when people select an agent, they presumably choose someone reliable. Therefore, realistically speaking, if the patient had chosen a health care power of attorney agent, it likely would've prevented this problem.

First, if you don't execute a health care power of attorney, your family members may disagree over what to do, resulting in a tie. You never want a tie. 

Second, if you don't choose someone to be your decision-maker for when you're incapacitated, the law will. And you may not like who it chooses. 

And third, if you decide to have a health care power of attorney agent, pick someone reliable and responsible. Ideally, they'd be on-call for you 24/7.