What’s the difference between a healthcare power of attorney and an advance healthcare directive?

The Advance Healthcare Directive (or Advance Health Care Directive, AHCD) combines two documents into one: a healthcare power of attorney and direction regarding the individual’s wishes regarding healthcare decisions.

The healthcare power of attorney names another person (aka an agent) to make healthcare decisions if the person (the principal) is incapacitated. It also authorizes the agent to make decisions regarding anatomical donations (organ donations), authorizing autopsies, directing disposition of remains (e.g. cremation or burial), and authorizing release of records. The agent is responsible for making decisions according to the instructions and wishes of the principal. If the principal didn’t give instructions, then it’s up to the agent to make decisions in the best interest of the principal based on the value of the principal.

As long as a person has capacity, then they can make their own decisions; it’s only when they lack capacity that the agent would get to make those decisions.

The other part of the AHCD allows the principal to make specific instructions about what they want and don’t want for medical treatment. That might include the selection or discharge of physicians, approving diagnostic tests, surgical procedures, etc., as well as the decision to prolong or not prolong life with artificial nutrition or hydration. It can also direct the use of alternative medicine.

A doctor may choose to decline to follow a healthcare instruction because of conscience or if it is contrary to public policy, but then the doctor MUST explain that to the patient or the agent and make all reasonable efforts to assist with the transfer of the patient to a facility willing to comply with the instructions — unless the patient or agent declines the assistance.

Starting January 1, 2024, “health care decision” do NOT include consent to treatment consisting of: 1) commitment to a mental health treatment facility; 2) convulsive treatment; 3) sterilization; or 4) psychosurgery.

However, there is a psychiatric advance directive that could specify the nature of, and reasons for, any treatments that might be considered psychiatric, as well as other mental health preferences that are not health care instructions or decisions. The psychiatric directive must be properly correlated to the instructions in the AHCD.

Got more questions? Contact me for a complimentary consultation.