Is my power of attorney legal if Mom's doctors didn't certify the document?

1 answer | Last updated: Oct 02, 2016
Jerseys asked...

My mother gave me Power of Attorney For Health Care, however the doctors didn't certify the document and she is mentally ill. Is this legal in the state of Indiana?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Take a close look at the document. It should specify whether a doctor needs to weigh in before it will take effect.

In Indiana, things are a bit complicated, because there are two types of documents that are commonly referred to as powers of attorney for health care.

One is part of a Living Will, which technically is the one that specifies what kind of medical care a person would want near the end of life. For this to take effect, an attending doctor must certify that the person: --has an incurable injury, disease, or illness --is likely to die within a short time, and --has a medical condition in which life prolonging procedures would only artificially prolong the dying process.

Another type of document is a more direct power of attorney for health care in which one person names another to give medical consent for him or her. Indiana law specifies only that "the authority granted becomes effective according to the terms of the appointment." That's legalspeak for the document should specify when it takes effect. Some give a date, some indicate that it should take effect immediately, some specify that a doctor should specify in writing that the person is no longer able to make decisions for himself or herself.

And some specify that the power of attorney takes effect "when the maker becomes incapable of consenting" or uses some similar language. It is usually best to get a medical doctor to state in writing that the person has become incapable of consenting.

As long as your mother understood the meaning and purpose of the power of attorney when she made it, you should be able to get one of her doctors to state in writing that she is no longer able to make decisions on her own if her mental illness does indeed prevent that"”and that the power of attorney appointing you as her agent should now take effect.