Like many states, Arizona has included a statutory health care power of attorney in its law. That means the legislature has written a power of attorney form for you. You can fill it out, sign it and have it witnessed, and you have a completely valid document.
The Arizona Attorney General’s office has even made the Arizona form fillable, included instructions and put the whole package online. You won’t pay a penny for legal fees, and you will have a power of attorney in place.
Should you do this yourself, saving some time, energy and money? If you haven’t done anything, and this would get you to sign a health care power of attorney, we’d like you to go ahead. But we don’t use the statutory health care power of attorney in our practice. The document is fine, so far as it goes — and it’s certainly better than not having anything in place. Is it worth hiring a lawyer to prepare your health care power of attorney? We’ll give you the facts, and let you decide.
So what’s wrong with the statutory health care power of attorney?
We want to be clear: there’s nothing wrong with the legislature’s document. If you complete and sign the form it will work just fine. But we think it can be improved upon.
For one thing, we think it’s confusing. It treats the health care power of attorney, living will and mental health care power of attorney as completely separate documents, while most people think of them as a single package. That’s how we draft our health care powers of attorney. The statutory form tends to overwhelm some people trying to figure out which documents are important, and how they interrelate.
The statutory form gives you a number of options to consider. That sounds good, but it can lead to further confusion and stop the process while you address those choices. The worst part: the choices are not actually about your health care at all. The form calls for you to make choices about an autopsy, organ donation and burial. We approve of getting you to think about those choices, but they are incidental to the health care power of attorney.
As prepared by the Attorney General’s office, the statutory health care power of attorney also has another problem: you can easily make selections that are inconsistent. You can authorize an autopsy, deny permission and give your agent the power to make the decision — and the form will cheerfully let you make all three choices without cautioning you that only one should be selected. One key provision (granting your agent permission to look at your medical records) is even optional — if you don’t initial that box, your agent may not have the authority to talk with your medical treatment team.
Why (or how) are lawyer-drafted forms better?
Lawyers don’t sell documents. We talk with you about what is important, and we work to memorialize your wishes. Rather than making you decide about your autopsy preferences, for instance, we will start with trying to figure out if the issue is even important to you. And we will work hard to keep from including mutually inconsistent provisions.
The statutory form also invites you to make mistakes. Some of the selection boxes, for instance, tell you to choose by typing your initials — others tell you to make a check mark in the box. If you type “x” in a box, have you adequately selected that choice? When we draft documents we don’t invite that confusion — we simply leave out the irrelevant or inconsistent provisions.
The statutory health care power of attorney also limits you to listing a single agent and a single alternate. Many of our clients want to name two (or more) people with equal authority to make medical decisions for them. Others want to name more than a single successor. We can adapt the form to your circumstances. We will discuss whether it is a good idea to name multiple agents, and how they might divide up the responsibility. In short, the interview and discussion process is at least important as the document that we prepare.
Other things that your health care power of attorney might include
The statutory form leads you to name an agent and alternate agent. It asks you to make selections about autopsy, organ donation and burial. The form refers to a living will (if you have signed one). It even asks you to talk things over with your physician. That sounds pretty comprehensive, right?
When we prepare your health care power of attorney, we’ll also ask you about whether you prefer to stay in your home even as your health deteriorates. We will review the usefulness of designating someone to make mental health treatment choices. We’ll even suggest the possibility of giving your agent the power to tell you when it’s time to stop driving. In other words, we will try to address a wide range of topics that might be important to you — but not make you focus on the ones you prefer not to address.
Rather than a form that includes pages of irrelevant material, our health care power of attorney will only include the things you choose. Don’t want to address the question of driving? Fine — we’ll simply delete that section. The choices you didn’t make won’t be included.
We don’t just sell forms — as we mentioned above. We provide advice and assistance. That includes making sure your documents are properly signed and witnessed, that you have sufficient copies, and that you understand how your health care advance directives relate to the other documents in your estate plan. We’ll even help you get your documents registered with the Arizona advance directives registry. You can do that yourself, of course (follow the link we just provided you — it’s actually easy). But when you get good legal advice, those procedures are easier — and we can help explain the importance of each choice.
What do I do now?
We’d rather that you sign the statutory health care power of attorney form than do nothing. Don’t let this discussion discourage you from starting the process. But if you want the document to be more comprehensive, and more personalized, you should talk with an attorney. If you’re in the Tucson area, that could be us.
