Medical Power of Attorney and Advance Directives
Making your healthcare wishes known through advance planningBy Canaan Suitt, J.D. | Last updated on January 19, 2023
Use these links to jump to different sections:
- Living Will vs. Advance Directive
- What Happens if You Don’t Have a Health Care Directive and Cannot Make Decisions for Yourself?
- When Should You Get a Power of Attorney and Advance Directive?
- Questions for an Elder Law Attorney
A medical power of attorney and advance healthcare directive are both important legal documents that prepare for what happens if you become unable to make medical decisions:
- An advance healthcare directive allows you to put your own healthcare decisions in writing. In the document, 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.
- A medical power of attorney (also called a healthcare proxy or healthcare agent) authorizes someone else to make healthcare decisions on your behalf if you become incapacitated.
The issues addressed by healthcare directives and power of attorney documents include:
- Treatment preferences from caregivers or healthcare professionals
- Whether you want to receive life support with the help of breathing machines, tube feeding, dialysis, blood transfusions, etc.
- Do Not Resuscitate orders
- Organ donation and tissue donation
Advance care planning gives you and your loved ones clarity and peace of mind about your plans for end-of-life care. Virginia elder law attorney Ann McGee Green says, “Everybody over 18 needs these documents. We don’t know what’s going to happen. Getting them done is important.”
Once you have an introduction to these legal documents, it’s essential to speak with an experienced elder law attorney about your situation. Beyond completing legal forms and ensuring you meet all the legal requirements, a lawyer can help you think through the big picture: what do you want to accomplish?
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:
- Healthcare power of attorney. As discussed above, this legal document authorizes an individual to make medical decisions for you if you become incapable of doing so.
- 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 Cannot Make Decisions for Yourself?
Without an advance healthcare directive or durable power of attorney, family members will be unable to make decisions about healthcare or other matters on your behalf.
They will have to petition the court for a guardianship or conservatorship order before they are legally authorized to make decisions about the following:
- Medical care
- Life-sustaining treatment
- Placement in a healthcare care facility
- Residence in a nursing home or other long-term care facility
- Release of medical records
- Financial affairs
The lack of a power of attorney also touches on areas 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, along with the costs and time involved in resolving them.
When Should You Get a Power of Attorney and 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.
So, “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? Green explains, “at the beginning stages of dementia, for example, 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.”
Questions for an Elder Law Attorney
Many elder law attorneys provide free consultations for potential clients. Alternatively, consultation fees may be counted towards legal services if you hire the attorney. You can ask about pricing upfront.
These consultations allow you to get legal advice and consider if you need legal help in creating an advance directive, power of attorney, or other legal documents.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What is your experience with elder law planning?
- What legal services do you offer?
- What are the most common types of advance directive forms?
- What advance planning documents should I have?
- Can family members override an advance directive?
- What happens if I need to change a medical directive or power of attorney?
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.
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