What is medical power of attorney?

A medical power of attorney, often referred to as an “advanced medical directive,” “durable power of attorney for health care,” or “health care proxy,” is a specialized form of power of attorney (POA) that provides someone with the legal capacity to make crucial medical choices in certain circumstances or execute them on your behalf only if you are unable to do so. This legal instrument proves highly beneficial if you ever encounter a situation where you cannot express yourself or rationally evaluate health-related concerns.

It’s prudent for everyone to contemplate establishing a medical power of attorney well in advance of its potential requirement.

How a medical power of attorney works

Before you create a medical power of attorney, you need to choose who will act as your healthcare proxy or agent. This person may go by other names in the document, depending on the state you live in. Titles include the following:

• Health care attorney-in-fact
• Health care representative
• Health care surrogate
• Patient advocate

No matter the title, the responsibilities of this person remain the same: to execute your healthcare wishes if you are incapacitated or otherwise incapable of communicating these wishes yourself. Without this specifically stated, hospitals and first responders may not handle health emergencies in the way you wish, such as resuscitating when you prefer not to have CPR performed. Additional considerations include the use of a feeding tube, intubation, and blood transfusions. Legally, decisions may end up being made by the primary physician, a judge, or both.

If you are in a coma, for example, the health care proxy can work with doctors to make sure your preferences for life support or end-of-life care are upheld according to your wishes. In cases where you haven’t already decided on these matters ahead of time, the proxy becomes a trusted advocate to help guide healthcare workers as new situations arise. If a living will has been created, however, decisions may not have to be made at all; the choice to resuscitate will have been made and stated in the living will so that the proxy won’t have to choose the outcome.

Because this agent will be tasked with matters of life and death, your decision to choose an agent should be a careful and deliberate one and should accompany the creation of a living will.

How to choose a healthcare agent

Healthcare proxies for medical power of attorney are often selected from spouses, parents, or other close family members, although individual states may have this role default to a next of kin. No matter who you choose, they should be someone who can make sound healthcare decisions. It’s essential that they fulfill your state’s criteria and do not have any conflicting interests; this means they cannot be your physician, nurse, or any other member of your healthcare personnel.

You should also pick someone who can handle the responsibility that comes with having to act on your behalf. Choose a person who is at ease discussing these matters, including the intricate aspects of certain medical conditions, procedures, and even death. This person should have firm boundaries and be able to adhere to their personal wishes, even in difficult times or with pressure from others.

The benefits of a medical power of attorney

Having a signed and notarized medical power of attorney offers many perks, and it is one of the most important documents you’ll create in a lifetime. With a power of attorney in place, you can:

• Have peace of mind that your medical preferences will be honored, even if you can’t tend to them yourself
• Spare your children, friends, and family members from having to go through added stress in difficult times or even give decisions over to the courts
• Receive continuity of care even when you are not able to choose your own physicians or medical care

Having this document in place can reduce family tension, keep family members from arguing over “what’s best” if you should fall ill, and eliminate guesses about what you would want to have happen should you become unable to communicate it.

Difference between a living will and medical power of attorney

People often confuse the living will and medical power of attorney, but these are two distinct legal documents. The living will is the list of conditions and permission you give for how you want to be treated in a medical setting. It includes things like whether you want to be kept on life support, be resuscitated, or have your organs donated to help transplant candidates.

The living will is the basis for how the medical power of attorney will be carried out. Your health care proxy, which is named in the power of attorney paperwork, can refer to the living will for instructions on how you want to be medically treated.

How to choose between a living will and medical power of attorney

Ideally, you should have both a living will and medical power of attorney, as each serves a crucial and distinct role in planning for times of poor health. Without a power of attorney, you may not have a trusted proxy to execute your living will. Similarly, without a living will, your power of attorney may be unaware of your wishes.

If you need to begin with just one option, prioritize the living will. A straightforward document can be drafted in a few hours, and some doctor’s offices can guide you to the forms used in your state. This document can be stored with your patient medical records for providers to refer to in case you aren’t able to communicate or remember your medical wishes. A copy should also be shared with family members. Following that, work on creating a medical power of attorney.

These two documents work hand-in-hand to plan for difficult medical situations.

How to get a medical power of attorney

Now that you know how crucial this document is, you can start the process of creating one. Ideally, you want to have one in place before any unfortunate events unfold.

With your representative or agent chosen, you can search for a medical POA form that aligns with the regulations in your state. Avoid looking for general forms that aren’t specific to where you live. Many states offer these for free.

The next step is to have your form notarized by taking it to a local notary public and signing it in their presence. They may require you to show photo identification to prove you are the person listed on the form. Some courthouses, hospitals, and banks have notaries on staff to provide these services.

Once signed, keep your POA in a secure place, like a fire-proof safe or safe deposit box. However, it’s essential to inform individuals of its whereabouts and how to retrieve it during an emergency. If your loved ones are unable to locate it when needed, your desires might remain undisclosed and unfulfilled.

Furthermore, consider providing a duplicate of your POA to the individual designated in the document, as well as to your doctor, local hospital, or any other medical professionals involved in your care.

Customizing your medical power of attorney

Template forms or those offered by your state serve as starting points for communicating your wishes. Dedicate time and thought to contemplate the specific actions you’d desire in different health scenarios, such as serious injury, coma, or paralysis. Consider questions like:

• Who will be my alternative agent?
• Can my agent make decisions regarding organ or tissue donation?
• Do I want a ‘do not resuscitate’ order?
• What limits should be set regarding my agent’s powers?

It can be helpful to familiarize yourself with certain medical terminology to help you articulate your preferences more clearly. Concepts such as tube feeding, ventilation, CPR, and blood transfusions are all decisions that should be addressed proactively. Additionally, think about how your current opinions on common medical treatments, such as antibiotics or pain management, might change if you’re in a terminal state or have minimal prospects of survival. Will your preferences for these interventions remain consistent under such circumstances?

When to activate your medical power of attorney

A medical power of attorney doesn’t go into effect until it’s been signed and notarized. The sooner you can get it done, the sooner it can be referenced if needed. By waiting until you are a certain age or health status, you risk needing decisions to be made before the POA is finished. It’s best to have one before you show any signs of medical trouble to know it will work for you when you need it most. Delaying activation carries significant risks with potentially grave consequences, so this document should be updated regularly and when life or health changes necessitate it. 

Additional resources on medical power of attorney 

These additional links provide the next steps for creating your own power of attorney forms.

• Sample medical power of attorney forms for Texas
• Sample medical power of attorney forms for Nebraska
• How to register for tissue and organ donation
• Advanced directives by state from AARP

Medical power of attorney FAQ

Is there a difference between power of attorney and medical power of attorney?

A medical power of attorney is a specific type of power of attorney that exclusively addresses medical decisions. In contrast, a general power of attorney can give decision-making power to another person for broader life decisions, while a financial power of attorney oversees your financial matters. Each variant of a POA serves a distinct purpose. 

How do you draft a medical power of attorney?

The best way to draft a medical power of attorney that will be legally recognized and not challenged by the courts is to use a document written by a licensed attorney in your state. Some states provide templates that can be filled in to help get you started, and these forms may be better than writing your own or not having one at all. 

However, if you encounter a distinctive medical circumstance or anticipate potential disagreements from challenging family members or friends, consider having a legal expert assess your document before you sign it.

Can a doctor override a medical power of attorney?

Yes, a doctor may be able to override a medical power of attorney if they conclude that the health care proxy is not acting in the patient’s best interest. In such cases, the doctor might seek legal recourse through the courts. However, this is a relatively uncommon occurrence. 

What happens if you don’t have a medical power of attorney?

Without a medical power of attorney, physicians may refer to your living will or advance directive for guidance on how to fulfill your wishes. However, this assumes they have access to your documents, and these documents may not have guidance for real-time changes to your medical circumstances. Having a medical power of attorney remains the best approach.