Primary and Successor Agents
You can appoint a “primary agent” (and one or more “successor” agents in the event the primary agent is unable or unwilling to serve) to make health care decisions for you in the event that you are later found to be incapable of making informed health care decisions.
Limits on the Agent’s Authority
1. Your agent’s authority is effective only as long as you are incapable of making an informed decision about health care.
2. In the wording of most advance directive forms, your agent has “full power and authority” to make decisions for you only “as described below” - so that, in the advance directive, you can specify the limits of your agent’s authority as you choose. (By the same token, if you want your agent to have complete authority to make decisions for you in regard to certain, or all, aspects of your health care, you need to make that clear in your advance directive, so that there will be no confusion about the extent of your agent’s authority.)
(See Section 54.1-2986.1 for the statutory language regarding this.)
Standards for Decision-Making by Agent
Your agent must comply with these standards:
1. must follow your desires and preferences “as stated” in the advance directive or “as otherwise known” to the agent;
2. must be fully informed regarding your condition and the risks and benefits of proposed treatment (or non-treatment);
3. must NOT make any decision that your agent knows, or “upon reasonable inquiry ought to know”, is contrary to your religious beliefs or basic values;
4. Must if your agent can’t determine what health care choice you would have made in regard to a particular treatment issue, then make the choice for you on the basis of what your agent believes is in your “best interests”.
(See Section 54.1-2986.1 for the statutory language regarding this.)
Agent not liable for Costs of Health Care Solely because of Authorization
Most standard advance directive forms include the provision that the agent “shall not be liable for the costs of health care that he or she authorizes, based solely on that authorization.” This reflects language that is in Section 54.1-2988 , so the agent has this protection even if this language is not in the form itself. Normally, the agent would have to specifically agree to assume financial responsibility for the cost of a proposed treatment before the agent would be financially liable. Simply authorizing the treatment on your behalf would not trigger financial liability.
Appointment of Agent as a “Health Care Power of Attorney”
Appointment of an agent in the advance directive is referred to by some people as a “Health Care Power of Attorney”, and that term is actually used in the statutes of other states. While that term is not used in the Virginia Code, it is a useful reminder that most “Power of Attorney” arrangements are financial in nature and do not cover health care. Therefore, if a friend or family member claims that they don’t need an advance directive because they already have a “Power of Attorney” arrangement, they may in fact have only a financial power of attorney, which does not cover health care issues.