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3. Durable Health Care Powers of Attorney

The Living Will section of the Advance Health Care Directive is only effective in terminal cases; those in which the patient has been certified as being terminally ill or injured or in a state of irreversible permanent unconsciousness that is reasonably expected to result in death in a short time. Even if withholding and withdrawing treatment are on the same legal, medical and ethical basis, it can be harder emotionally to terminate some kinds of treatment than not to start them at all.

Given the rapid progress of medical treatment, some people are also concerned that situations may develop that cannot be foreseen at the time they execute an Advance Directive. It is also possible to be so ill or seriously injured as to be temporarily unable to make health care decisions, but still be able to recover.

If a person has someone (s)he can trust completely and can talk to openly about these issues, we recommend executing both an Advance Directive and a Health Care Power of Attorney, to address all of those situations. (The Proxy section of Alabama’s 2001 Advance Directive was probably intended to allow appointment of a general Health Care Agent, but there has been some confusion on this point and having a separate document may be wise.)

In some states the document used to make advance health care choices is a Health Care Power of Attorney. It is similar to but broader and more flexible than the proxy appointment in an Advance Health Care Directive. In Alabama, both documents can be used. When the legislature changed the Natural Death Act in 1997, it also amended the Durable Power of Attorney Act. Both Acts permit appointment of a Proxy to make decisions in terminal cases, and also provide for appointment of a Health Care Agent who can make decisions in both terminal and non-terminal cases.

If the Agent is to be able to make decisions about tube feeding, the document must specifically say so. There must be two disinterested witnesses to the person’s signing the “HCPOA”, just as with an Advance Directive. It is not clear from the law whether a health care power should be notarized. Because the statute was not clear, the authority given by these documents may be a little broader than that given to a Proxy in Alabama's Advance Directive, HCPOAs are less familiar to health care providers, and Powers of Attorney are routinely notarized, many attorneys had clients execute these documents before two witnesses and a notary, just as with a will. As use of Health Care Powers of Attorney increases, doing so is probably an excess of caution; the statute seems to require only two witnesses, as with an Advance Directive for Health Care, and that is now common practice.

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