Durable Health Care Power Of Attorney
Q.My wife and I were reviewing her Power of Attorney, which contains pregnncy provision (see below). But we're having trouble interpretting the impact of the last sentence. Can anyone help us? If I have been diagnosed as pregnant and that diagnosis is known to my physician, this document shall have no force or effect during the course of my pregnancy. However, if at any point it is determined that it is not possible that the fetus could develop to the point of live birth with continued application of life-sustaining procedures, it is my preference that this document be given effect at that point. If life-sustaining procedures will be physically harmful or unreasonably painful to me in a manner that cannot be alleviated by medication, I request that my desire for personal physical comfort be given consideration in determining whether this document shall be effective if I am pregnant.
A.Although evidently in a document (somewhat) similar in generalized function (i.e., to designate A to be P's agent for stated purposes) yet perhaps not customarily/properly nor helpfully referrable to as a "Durable Power of Attorney" (as compared with a so-called "living will" or "health care proxy"), it is an astoundingly badly-drafted and, anyway, potentially humongously stupid provision to ask [compare: to direct] the agent to do this: What the lawyer (or whoever wrote it) is trying to accomplish is understandable. He basically is trying to say -- if she's two weeks pregnant, in screaming agony, and it is only "possible" (but most unlikely) that she will live long enough to have the baby, then just "do the right thing." That, more or less, is what it should say. A health care power of attorney AUTHORIZES you to pull the plug in certain circumstances, and tells you what those circumstances are. But it does not MAKE you do anything. The whole purpose of the health care POA is to give someone else authority to use their judgment when you can't use yours. You can't anticipate all the factors that might come into play. If it were me, I would revise the paragraph along these lines: "In the event that I am pregnant, my attorney shall have the same authority that I would have to authorize treatments or procedures to protect the health of the fetus [or to terminate the pregnancy], and [may/should] consider the effect of recommended treatments on the health of the fetus in exercising the authority granted herein to direct my medical care. In particular, in considering whether to direct the termination of extraordinary life-sustaining measures, my attorney [may/should] take into account my beliefs about the life of the unborn, which we have discussed privately, together with the viability and duration of the pregnancy, the health of the fetus, and such other facts and circumstances that he judges relevant. Provided, however, that such considerations shall not be construed to limit the authority granted my attorney."
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