One of the most important decisions you can make for yourself and your family is choosing who will speak for you if you cannot speak for yourself. A healthcare power of attorney is the legal document that makes that choice official.
Yet despite its importance many adults do not have one in place. If something unexpected happened tomorrow — an accident, a sudden illness, a medical emergency — who would make healthcare decisions on your behalf? Without a healthcare power of attorney that decision may be left to the courts or made by someone you would not have chosen.
This guide explains what a healthcare power of attorney is, how it works, and why every adult should have one.
What Is a Healthcare Power of Attorney?
A healthcare power of attorney — also called a medical power of attorney or healthcare proxy in some states — is a legal document that designates another person to make medical decisions on your behalf if you become unable to make them yourself.
The person you designate is called your healthcare agent, healthcare proxy, or attorney-in-fact depending on your state.
Your healthcare agent can make decisions about:
- Medical treatments and procedures
- Surgery and hospitalization
- Medications and pain management
- Life-sustaining treatment
- Rehabilitation and long term care
- Organ donation preferences
- Discharge and transfer decisions
A healthcare power of attorney only takes effect when you are unable to make or communicate your own medical decisions. As long as you are conscious and capable of communicating your wishes your agent has no authority to act.
How Is a Healthcare Power of Attorney Different From a Living Will?
These two documents are often confused but they serve different purposes and work best when used together.
Healthcare Power of Attorney Names a specific person to make medical decisions on your behalf. Your agent can respond to situations as they arise — even unexpected ones that you could not have anticipated when you created the document. Your agent speaks for you in real time.
Living Will Documents your specific wishes about end-of-life care — such as whether you want to be kept on life support or receive aggressive treatment if you have a terminal condition. A living will speaks for you through written instructions.
Why You Need Both A living will cannot anticipate every medical situation. A healthcare power of attorney fills in the gaps by giving your agent the flexibility to make decisions based on your values and wishes as circumstances develop. Together these two documents give you the most complete protection.
In many states these two documents are combined into a single document called an Advance Healthcare Directive or simply an Advance Directive.
Who Should You Choose as Your Healthcare Agent?
Choosing the right healthcare agent is one of the most personal decisions involved in advance care planning. This is the person who will speak for you during some of the most critical moments of your life.
Your healthcare agent should be someone who:
- Knows you well — and understands your values, beliefs, and wishes about medical care
- Can handle stress — medical crises are emotionally difficult and your agent needs to be able to think clearly under pressure
- Will advocate for you — not for what they want or what the family wants but for what you would want
- Is available — they should be reachable quickly in an emergency
- Is willing — always ask someone before naming them as your agent
Your healthcare agent does not need to be a family member. Many people choose a close friend, a trusted neighbor, or a religious advisor if they feel that person better understands and respects their wishes than their family members would.
What If I Do Not Have a Healthcare Power of Attorney?
If you become incapacitated without a healthcare power of attorney in place the consequences can be serious.
In most states healthcare providers will turn to your next of kin to make decisions on your behalf. This sounds reasonable but it can create real problems:
Family disagreements. If family members disagree about your care the dispute can escalate quickly — sometimes ending up in court.
The wrong person decides. Your legal next of kin may not be the person you would have chosen. A sibling you are estranged from may have more legal standing than a close friend you have known for decades.
Court intervention. In some cases a court may need to appoint a guardian to make medical decisions for you — a process that is slow, expensive, and stressful for your family.
Unwanted treatment. Without documented wishes healthcare providers may default to aggressive life-sustaining treatment even if that is not what you would have wanted.
A healthcare power of attorney prevents all of these situations by putting the right person clearly in charge.
What Limits Does a Healthcare Agent Have?
While a healthcare agent has broad authority to make medical decisions there are limits to what they can do.
Your agent must:
- Follow any specific instructions you included in your healthcare power of attorney or living will
- Act in your best interest
- Make decisions consistent with your known values and wishes
Your agent generally cannot:
- Authorize actions that are prohibited by law
- Override your clearly expressed wishes while you are still capable of communicating them
- Make financial decisions — that requires a separate financial power of attorney
How to Create a Healthcare Power of Attorney
Requirements vary by state but here are the general steps:
Step 1 — Choose Your Agent
Select someone you trust completely and discuss your wishes with them in detail. Make sure they are willing to serve in this role.
Step 2 — Choose a Successor Agent
Name a backup agent in case your first choice is unable or unwilling to serve when the time comes.
Step 3 — Document Your Wishes
Think about your values and wishes regarding medical treatment. Consider discussing them with your doctor as well as your agent. The more clearly your agent understands your wishes the better they can advocate for you.
Step 4 — Work With an Attorney or Use Your State’s Form
Many states provide a standard healthcare power of attorney form that meets legal requirements. You can also work with an estate planning or elder law attorney to create a customized document.
Step 5 — Sign With Proper Witnesses
Most states require your signature to be witnessed by two adults and/or notarized. Requirements vary by state — make sure you follow your state’s specific rules.
Step 6 — Distribute Copies
Give copies to:
- Your healthcare agent and successor agent
- Your primary care physician
- Any specialists involved in your care
- Your hospital if you are admitted
- Your attorney
- Keep the original in a safe but accessible place
Step 7 — Review It Periodically
Review your healthcare power of attorney every few years or after major life changes such as divorce, the death of your named agent, or a significant change in your health or values.
Talking to Your Agent About Your Wishes
Creating the document is only the first step. The most important thing you can do is have an honest and detailed conversation with your healthcare agent about your wishes.
Consider discussing:
- Your values and what quality of life means to you
- Your feelings about life-sustaining treatment and artificial nutrition
- Your wishes regarding pain management and comfort care
- Your preferences about dying at home versus in a hospital or facility
- Your organ donation wishes
- Any specific medical treatments you would or would not want
These conversations can be difficult but they are one of the greatest gifts you can give your loved ones — the clarity to act on your behalf with confidence.
Frequently Asked Questions
At what age should I create a healthcare power of attorney? Every adult over the age of 18 should have a healthcare power of attorney. Medical emergencies can happen at any age and having this document in place ensures your wishes are respected regardless of when something happens.
Can I change my healthcare power of attorney? Yes. As long as you are mentally competent you can revoke or update your healthcare power of attorney at any time. Simply sign a written revocation and notify your agent and your healthcare providers.
Does my healthcare agent get paid? Not automatically. Most healthcare agents serve without compensation. If you want to compensate your agent you can specify that in the document.
Can my healthcare agent override my living will? Generally no. Your agent is required to follow the specific instructions in your living will. However a well-drafted healthcare power of attorney can give your agent some flexibility to interpret your wishes in situations your living will did not anticipate.
Does a healthcare power of attorney expire? Most healthcare powers of attorney remain in effect indefinitely until you revoke them or until your death. Some states allow you to set an expiration date if you choose.
Is a healthcare power of attorney valid in other states? Most states will honor a healthcare power of attorney that was validly created in another state but there can be variations. If you spend significant time in multiple states consider having documents drafted to meet the requirements of each state.
What is the difference between a healthcare power of attorney and a POLST form? A POLST form — Physician Orders for Life-Sustaining Treatment — is a medical order signed by your doctor that gives specific instructions to emergency responders and healthcare providers. It is different from a healthcare power of attorney and the two documents complement each other. Seriously ill seniors often benefit from having both.
Suggested Internal Links
- What Is a Power of Attorney?
- What Is a Financial Power of Attorney?
- What Is a Living Will?
- What Is a POLST Form?
- What Is a Healthcare Directive?
- What Is a Springing Power of Attorney?
- What Is a Durable Power of Attorney?
Suggested External Sources
- American Bar Association — Health Care Advance Directives
- National Institute on Aging — nia.nih.gov
- CaringInfo — caringinfo.org
- National Academy of Elder Law Attorneys — naela.org