By Heather Agun, Edited by Becky Pearsall
*Created under the direct legal supervision of Stephen Waltar. See Disclaimer
Photos by Heather Agun
For many years, my family doctor was also my family’s next-door neighbor. Our two families were close; even years after they had moved, we would reminisce about old times at my yearly check-ups. If you have a doctor that you’re close with, you may have considered naming them to act as your healthcare power of attorney. Our clients occasionally ask us about this situation, so we’ve broken it down for you.
There are three major reasons why people want their doctor to act as their healthcare power of attorney. We’ll go through each scenario with you, review the law, and consider alternatives. It is important to be well-informed when making a decision like this.
Your Doctor is a Close Family Friend or Extended Family
If your doctor is your best friend, your long-time neighbor, or your trusted uncle, you may not see a problem with naming them as your health care power of attorney. However, if you live in Washington State, the law states that your doctor can only act as your power of attorney if they are an immediate family member (such as a spouse, domestic partner, father, mother, adult child, brother, or sister). Although we will specifically discuss physicians here, the same law applies to naming a physician’s employees, and owners, administrators, or employees of a healthcare facility or long-term care facility where you reside or receive care.
In Washington State, the law states that your physician, physician’s employees, and owners, administrators, or employees of a healthcare facility or long-term care facility where you reside or receive care, can only act as your power of attorney if they are an immediate family member (spouse, domestic partner, sibling, parent, or child.)
If you are wondering why this is the case, consider the risk that acting as both a power of attorney and a doctor could create. By being responsible for evaluating your health and giving medical advice, physicians already function with a lot of liability. If they are also responsible for making all your healthcare decisions (should you become incapacitated), they are exclusively responsible for your complete medical wellbeing. Many doctors would wish to limit such extreme liability.
Although it can cause inconveniences for some, the current laws in Washington State exist to help protect both you and your doctor.
You Don’t Have Another Person You Trust with Your Health
If you don’t have someone you trust right now with your health, you may need to consider other options. As mentioned above, the law in Washington State is that only an immediate family member can act as both your healthcare power of attorney and your doctor.
If you have already considered your family and friends and determined that none of them are suitable, you can consider naming a professional guardianship agency, or not naming anyone at all. It can be better to do without than to choose a person who would act against your wishes.
Professional guardianship companies offer to act as financial or healthcare agents for a fee. If you would like more information on guardianship companies, our firm is happy to provide you with a list of Puget Sound agencies that you could reach out to for more information.
If you choose not to have a healthcare power of attorney, it is very important that you have a valid and up-to-date Living Will (or “Directive to Physicians”) that reflects your personal wishes. If you are a client with us, you can look through your Estate Planning Binder or call our firm to check if you have created a Living Will. If you are not a client at our firm, you are welcome to schedule an initial consultation to discuss your estate plan more in depth. We are also happy to direct our out-of-state readers to other AAEPA member firms near them.
If you choose not to name a healthcare power of attorney, it is very important that you have a valid and up-to-date living will. You should also be aware that if you become incapacitated, the court may need to appoint a guardian for you that you have never met, in a “living probate.”
It is important to note that not naming a healthcare power of attorney means that if a medical decision needs to be made for you, and you are unable to make it for yourself, the court may need to appoint a guardian for you. The guardian appointed for you may be someone you have never met. Guardianship proceedings, or “living probates,” are important for ensuring people are properly cared for; but they can also be costly, public, and embarrassing. Please consult your attorney for further detail and to discuss potential ramifications if you choose not to list anyone as your healthcare power of attorney.
Your Immediate Family Member is Your Doctor
The law in Washington State provides that if your immediate family member (such as your spouse, domestic partner, child, parent, or sibling) is your doctor, they can also act as your power of attorney. If the person you trust most for your healthcare also happens to be your doctor, listing them is a great option. However, you may want to evaluate the situation closely and ask them if they are comfortable with it.
It is important to consider the precarious situation it could put someone in. Your doctor is responsible for evaluating your medical state and providing medical advice. If they are your power of attorney, they must also make decisions around their own advice. They may have to decide whether to have you go through a risky surgery or whether to move you to a facility farther from the rest of your family that might provide better care. You can see how being solely responsible for your entire medical well-being would create a lot of liability for them.
Also, although you may trust your doctor/family member unconditionally, others who care about you may not. In some situations, even those with the best of intentions may have their motives questioned. Usually, suspicions come from someone else who is concerned about your well-being but may disagree with what is best for you. The situation can become especially uncomfortable if your power of attorney agent is also expecting an inheritance from your estate.
Of course, many people are confident in choosing someone like a spouse who is their doctor to act as their power of attorney, regardless of the potential downside. We recommend that you ask the person you want to name to ensure they are comfortable, but ultimately you will know what the right choice is for you.
In Washington State, you can only name your physician as your healthcare power of attorney if they are an immediate family member, so you can’t name close friends or distant relatives that you trust. If you don’t have anyone else you trust, you should consult with your attorney about the potential ramifications of not naming anyone.
If your doctor is an immediate family member, you may list them as your power of attorney. However, many healthcare professionals would be uncomfortable with the liability and responsibility involved in dually acting as your healthcare agent and your physician. The usual checks and balances that separate these responsibilities prevent your doctor from making your medical decisions, and this protects doctors and patients alike. It is possible even your close family member might feel uncomfortable with the responsibility of having so much authority over you, so it is important to ask them.
It is always better to have a power of attorney and not need one, than to need a power of attorney and not have one! A power of attorney is like an insurance policy you only have to pay for once. It ensures someone is there to advocate for your wishes in the event you become incapacitated, and it can prevent costly guardianship proceedings.
It is always better to have a power of attorney and not need one, than to need a power of attorney and not have one!
When you’re ready to create your own power of attorney, call your estate planning attorney or reach out to our firm in Bellevue to make an appointment. Both healthcare and financial powers of attorney are vital parts of your estate plan, and it is important that yours is up-to-date. If it’s been more than five years since you had your estate plan reviewed, we recommend coming in for a checkup to ensure it still adheres to current legislation and meets your needs.
Do you have estate planning questions you want answered? Submit them as ideas for our blog by using the Contact Us page, and our staff will add them to our list of potential blog post ideas! If we write the article you suggested, we’ll notify you with a small thank-you gift! We always appreciate when our clients and readers participate in the Legacy Estate Planning community.
*This blog post was written under the supervision of an attorney, Stephen M. Waltar, and all legal opinions shared are that of the attorney.
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