Medical Power of Attorney During Cancer

This page is for people with cancer who want to choose someone to make health decisions for them if they cannot. It explains what a medical power of attorney does, how it differs from other forms, and how to make sure it works when needed.

A medical power of attorney names a person who can make health care choices for you when you cannot make them yourself. The same document is called a durable power of attorney for health care in some states, and a health care proxy in others. The person you name may be called your proxy, agent, surrogate, or representative.

The names differ. The job does not. That person speaks with your voice when you cannot.

A living will spells out treatments. It says what you want and what you refuse, and under what conditions. It works well for situations someone thought to write down.

A proxy is a person. That person applies your values to situations nobody predicted.

MedlinePlus describes both as advance directives: a living will states treatment wishes, and a durable power of attorney for health care names a person to decide for you. Ask your care team or a lawyer whether having both makes sense in your state.

This is the most common misunderstanding, and it matters during cancer treatment.

Advance directives are for when you cannot tell doctors and loved ones what you want. As long as you can say it yourself, you decide.

Ask your care team how your state's form takes effect.

Federal regulation, at 42 CFR 489.102, puts specific duties on providers that take Medicare or Medicaid. That covers hospitals, critical access hospitals, rural emergency hospitals, skilled nursing facilities, nursing facilities, home health agencies, and hospices.

They must give you written information about your rights under your state's law to accept or refuse treatment. They must explain their own policies for carrying those rights out, including any limits based on conscience and which conditions or procedures those limits touch.

The timing is set. Hospitals and skilled nursing facilities do this at admission. Home health and personal care agencies do it before or at the first visit, before care starts. Hospices do it when you first receive care. Rural emergency hospitals do it at registration.

Two more duties are worth knowing. They must document in a prominent part of your current medical record whether or not you have executed an advance directive. And they may not condition your care or discriminate against you based on whether you have one.

If nobody asked you at admission, that is a gap you can name out loud.

A proxy is not only a decision-maker. Under the HIPAA Privacy Rule, at 45 CFR 164.502(g), a person with legal authority to make your health care decisions is your personal representative. Covered entities must treat that person as they would treat you for uses and disclosures of your protected health information.

Practically, your representative can access records relevant to their role, request an accounting of disclosures, and authorize releases.

The scope follows the paperwork. Broad authority over health decisions brings broad access. A power of attorney limited to specific treatments brings access only to information relevant to that limit. If you want your proxy able to see everything, the document has to say so.

There is one carve-out. A provider may decline to recognize a personal representative when it reasonably believes the person has subjected you to domestic violence, abuse, or neglect, or that recognizing them could endanger you.

Advance care planning is covered under Medicare Part B. It includes the discussion and the work of preparing directives, both the proxy piece and the living will piece.

The cost depends on when it happens. During the Welcome to Medicare preventive visit or a yearly Wellness visit, you pay nothing, as long as your provider accepts assignment. If the same planning happens as part of other medical treatment, the Part B deductible applies and you pay 20% of the Medicare-approved amount.

So there is a cheap way and a less cheap way to have the same conversation. Ask for it at the Wellness visit.

None of these replace a proxy, and mixing them up causes real trouble.

MedlinePlus describes a do-not-resuscitate (DNR) order as a medical order telling providers not to do CPR if breathing or the heartbeat stops. It covers CPR only. A do-not-intubate (DNI) order is a related order about breathing tubes and ventilators. A POLST or MOLST, depending on the state, is a medical order form. Ask your care team whether any of these fit your situation.

A proxy form answers who decides. These forms answer what happens right now. A person in active cancer treatment may reasonably have a proxy and no POLST at all.

Directives can be changed. Consider reviewing yours after a major change in health, such as a new cancer diagnosis, and ask your care team or a lawyer how often to update it.

State lines cause the second common failure. State rules differ. If you spend real time in more than one state, ask a lawyer or your care team whether you need each state's form.

The third failure is simple filing. A document in a drawer at home is useless at 2 a.m. in an emergency department.

• Name a primary proxy and at least one alternate, and ask both first
• Complete your state's form, and a second state's form if you split time
• Give a signed copy to each proxy, your oncology clinic, and your primary care office
• Upload a copy to the patient portal, and confirm someone attached it to the chart
• Ask whether it shows in a prominent part of the record, since that is the regulatory wording
• Tell your proxy what matters to you, not only which boxes you checked
• Reread it after any change in health or treatment plan
• Keep the originals with your other records so they can be found quickly

Two more things belong on the same shelf: your insurance details, and a contact list for banks, insurers, employers, and any attorney. NCI's planning page suggests this kind of contact list. When someone else has to act for you, the search should take minutes.

https://medlineplus.gov/advancedirectives.html https://medlineplus.gov/ency/patientinstructions/000473.htm https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-489/subpart-B/section-489.102 https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/personal-representatives/index.html https://www.medicare.gov/coverage/advance-care-planning https://www.cancer.gov/about-cancer/advanced-cancer/planning