Medical Power of Attorney and Advance Directives

A medical power of attorney and an advance healthcare directive are two important legal documents that prepare for what happens if you become unable to make medical treatment decisions for yourself. An advance healthcare directive outlines your healthcare wishes in the event you become incapacitated. A medical power of attorney designates someone to make healthcare decisions for you.

These documents are among the most basic and necessary tools for planning your future. To make sure your healthcare directive and power of attorney meet state law requirements, talk to a local elder law attorney.

Understanding Health Care Planning Documents

The two most common medical decision-making documents include the following:

• Advance healthcare directive: This legal document lets you put your own healthcare decisions in writing. You say what you want your healthcare provider or medical care team to do (or not do) if you become incapacitated and unable to make healthcare decisions. 
• Medical power of attorney: Also called a healthcare proxy or healthcare agent, this document authorizes someone to make medical decisions on your behalf if you become incapacitated. 

The issues addressed by healthcare directives and power of attorney documents include: 

• Whether you want to receive life support with the help of breathing machines, tube feeding, dialysis, blood transfusions, etc. 
• Do Not Resuscitate (DNR) orders 
• Treatment preferences from caregivers or healthcare professionals 
• Organ donation and tissue donation 

Advance care planning gives you and your loved ones clarity and peace of mind about your end-of-life care plans. “Everybody over 18 needs these documents. We don’t know what’s going to happen. Getting them done is important,” says Ann McGee Green, an elder law attorney at Anderson, Desimone & Green in Roanoke, Virginia.

Once you have an introduction to these legal documents, it’s essential to speak with an experienced elder law attorney. Beyond completing legal forms and ensuring you meet the legal requirements, a lawyer can help you think through the big picture to accomplish your goals.  

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Living Will vs. Advance Directive 

Is there a difference between a living will and an advance directive? “Living will” is simply another name for one type of “advance healthcare directive.”  

Other types include: 

• Health care power of attorney: This legal document authorizes an individual to make medical decisions for you if you become incapable of doing so. You can designate a family member, close friend, or other trusted person to carry out your healthcare wishes. This is also known as a durable power of attorney for healthcare.
• Do Not Resuscitate order: A DNR says that if your heart stops while receiving medical care, you do not want healthcare professionals to try to resuscitate you. DNRs are often used by individuals with terminal illnesses who do not wish to prolong their life through medical treatment. 
• Physician Orders for Life-Sustaining Treatment (POLST): A POLST provides instructions about what you want to happen in the event of a medical emergency. A POLST does not replace or contradict your living will or medical directive; instead, it provides further instructions for specific circumstances.  

What Happens if You Don’t Have a Health Care Directive and Can’t Make Decisions for Yourself?

Without an advance healthcare directive or durable power of attorney, family members will be unable to make decisions about your medical care. Your loved ones will have to petition the court for a guardianship or conservatorship order before they can make decisions about the following: 

• Medical care 
• Life-sustaining treatment 
• Placement in a healthcare facility 
• Placement in a nursing home or long-term care facility 
• Release of medical records 
• Financial affairs 

The lack of a power of attorney also extends beyond healthcare.  

For example, “Just because you’re married to someone and co-own a house with them, that doesn’t mean that if your spouse becomes incapacitated, you can just sell the house on your own,” says Green.

“You and your spouse both have to be able to sign off on the sale. So, if your spouse becomes disabled through an accident or some other event, and you don’t have a power of attorney, you’re going to have to go to court if you want to sell the house or if you want to get your spouse’s 401(k) or life insurance policy.” 

Having a power of attorney in place can avoid legal issues down the road and the costs and time required to resolve them. 

When Should You Get a Power of Attorney and an Advance Directive?  

“You should do these documents in a timely manner,” says Green. Once you turn 18, other people can’t make decisions for you or have access to your medical information without your authorization.  

“Everybody should have them once they’re 18 — a power of attorney, a medical directive, and some kind of estate plan if they own anything,” says Green. “You can name people who can serve in those capacities for you. A medical directive would be for your medical and residential decisions, while a general durable power of attorney would be for financial decisions. So, if you become incapacitated, you don’t have to go to court.” 

What if you have not created these documents before medical or cognitive problems begin? “At the beginning stages of dementia,” says Green, “most people still have the capacity to do these documents. However, towards the end stages, it may be too late.” 

The upshot is that “if you are a neurotypical adult or someone who has the capacity to understand doing a power of attorney or advance medical directive, you should do those documents as soon as you can so that if you later become incapacitated, you have someone in place to make decisions on your behalf.” 

Find a Local Elder Law Attorney 

Many elder law attorneys provide free consultations for potential clients. Alternatively, consultation fees may count towards legal services if you hire the attorney. You can ask about pricing upfront.  

These consultations allow you to get legal advice and consider whether you need help creating an advance directive, power of attorney, or other legal documents. 

Once you have met with a lawyer and they’ve answered your questions, you can begin an attorney-client relationship. Look for an elder law attorney in the Super Lawyers directory for legal help with advance care planning.