What is a medical power of attorney?

It’s natural to put off thinking about what would happen if you became seriously ill or injured and couldn’t make your own medical decisions. However, by taking some time now to put your wishes in writing, you can save yourself and your loved ones a lot of stress and confusion later on. If the unthinkable happens, having a medical power of attorney will make sure your healthcare wishes are known and respected.

We never know when something unexpected could happen to us, like a sudden injury or illness. With a medical power of attorney, you create peace of mind for yourself and your loved ones by choosing someone you trust to make important decisions for you in the event you’re unable to.

Regardless of your age or health, a medical power of attorney is an important part of every estate plan. Here’s everything you need to know about this necessary legal document.

What is a medical power of attorney (POA)?

A medical power of attorney — also called a healthcare power of attorney or healthcare proxy — is a document that allows you to give someone the legal authority to make important medical decisions on your behalf if you become incapacitated and can’t communicate your own wishes.

A medical power of attorney only applies when you’re incapacitated; it never applies when you’re capable of making your own medical decisions.

Depending on where you live, a medical power of attorney may also be called:

• Power of attorney for healthcare
• Advance directive
• Advance healthcare directive
• Medical power of attorney directive

The person you name in your medical power of attorney is called your healthcare “agent” or “proxy.” The decisions you can give your agent the authority to make include:

• Consenting to or refusing certain medical treatments, like surgeries, vaccines, radiation, and more
• Authorizing pain relief to manage your pain
• Choosing healthcare providers and facilities
• Accessing your medical records to inform their decisions
• Authorizing life-sustaining care, such as a feeding tube or ventilator

A medical power of attorney is one type of POA. You can read about the other types here.

When does your medical power of attorney take effect?

A medical power of attorney takes effect when a physician determines you’re “incapacitated” — meaning you’re no longer able to communicate your wishes or understand the consequences of a healthcare decision. This may happen if you:

• Are under general anesthesia
• Experience an illness, such as a stroke, that leaves you unable to communicate
• Have an accident that leaves you in a coma or unconscious state
• Develop Alzheimer's or another form of dementia that impacts your ability to make rational decisions

Why do you need a medical power of attorney?

Creating a medical power of attorney is a proactive way to prepare for an unknown future. A medical power of attorney lets you choose someone you trust to make important medical decisions when you’re unable to. It’s a way to protect yourself and provide clear guidance to your loved ones and doctors.

Here are a few benefits of having a medical power of attorney:

• Prepare for an upcoming medical procedure. If you’re anticipating a surgery, it’s a good idea to name a healthcare agent since you can’t give consent while under anesthesia.
• Address a degenerative disease diagnosis. Alzheimer’s, cancer, ALS, and Huntington’s disease are all conditions that will eventually make it impossible to understand or consent to medical treatment. After diagnosis, you may want to create a medical power of attorney while you still have capacity.
• Ensure your healthcare wishes are respected. Your agent must make decisions in your best interest and according to your known preferences. By putting your wishes in writing, you reduce the potential for confusion and disputes.
• Avoid family conflicts and legal issues. Without clear guidance, your loved ones may disagree about your care. And if you don’t have a medical power of attorney, a court will need to appoint a healthcare agent for you, which can delay medical treatment and be stressful for everyone involved.
• Create peace of mind for you and your loved ones. Knowing that you’ve made your preferences clear — and that someone you trust will be there to advocate for you — can provide immense comfort to you, and give your loved ones confidence that they’re doing the right thing. By outlining your healthcare preferences now, you prevent the burden and stress of those choices from falling to the people you love.

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

If you become incapacitated and don’t have a medical power of attorney, state law determines what happens. In some states, your healthcare providers may be able to rely on your next of kin, such as your spouse, to make decisions for you. In other states, a court may have to assign a guardian or healthcare agent. When possible, a court will usually choose a close family member, like a spouse or adult child, to serve as your agent.

However, this decision is based on arbitrary state laws and may not align with your personal preferences. The individual the court chooses as your agent may not be the person you would have chosen for yourself. And your loved ones can’t control who a court will appoint to this role.

Also, without a medical power of attorney, your loved ones may have to go through a long and difficult legal process to access your medical records so they can make informed decisions about your care. This can delay your treatment and add unnecessary stress to an already difficult situation.

By creating a medical power of attorney, you make sure your healthcare wishes are known and followed by someone you trust, even when you can’t advocate for yourself.

Who should you choose as your healthcare agent?

Your healthcare agent or proxy should be someone you trust to respect your wishes and make difficult decisions. Many people choose their spouse, an adult child, a sibling, or a close friend for this important role.

When choosing an agent, consider the following questions:

• Emotional maturity: Can this person handle stressful situations and put their emotions aside to carry out your wishes, even if those wishes differ from their own?
• Assertiveness: Is this person comfortable asking questions, clarifying information with doctors, and advocating on your behalf?
• Availability: Does this person live nearby, or would they be able to travel to you and stay for a prolonged period?
• Responsibility: Is this person organized and responsive? Would they be able to handle important decisions about your medical care in addition to their own obligations and commitments?
• Willingness to serve: Is this person up to the job? It’s an important and often challenging role. Have an honest conversation with the person you have in mind to make sure they’re willing to take on the responsibility.

It’s a good idea to choose an alternate agent, who will serve as a backup in case your primary agent is unavailable or unwilling to serve. You also have the option to choose joint agents — if you do, all agents would have to agree on any medical decisions.

What decisions are covered in your medical power of attorney?

How much authority your healthcare agent has over your medical care is up to you. You could write your medical power of attorney in a way that allows your agent to make any decision about your medical care. Or, you can establish limitations and timeframes on your agent’s power.

If you so choose, you can allow your healthcare agent to decide:

• What medical care you receive, including surgery, medical treatments, medications, and home healthcare
• The facilities where you receive your medical care
• The doctors and other providers who oversee your medical care
• Where you live, including assisted living, nursing homes, or residential long-term care
• Who cares for your everyday needs, such as eating and bathing

Your healthcare agent is required to act in your best interest and according to your wishes. For example, if you’ve expressed that you don’t want to be put on a ventilator, your agent can’t consent to that treatment.

Note that a medical power of attorney doesn’t give your agent the authority to make financial decisions on your behalf — including paying for your medical care. For that, you would need a separate financial power of attorney to oversee your finances. Your healthcare agent would work with your financial agent to make sure you can afford the care chosen for you. (You can use FreeWill to make your financial power of attorney for free, too!)

Medical power of attorney vs. living will: What’s the difference?

In the past, a “living will” was commonly used instead of a medical power of attorney. While a living will outlines your medical preferences, it doesn’t appoint an agent to make decisions on your behalf, which can limit its effectiveness.

Today, a living will is often incorporated into a medical power of attorney or advance directive. These documents serve the same purpose as a living will, but provide stronger legal authority by allowing your healthcare agent to make decisions when needed.

How to create a medical power of attorney

Here are the steps to create a legally binding medical power of attorney:

1. Get a medical power of attorney form.

Each state has its own laws that dictate what makes a medical power of attorney legal. Most states have a standardized form you can use. You also have the option to use FreeWill to make your advance healthcare directive (which includes a medical power of attorney) — our forms are legally valid in all 50 states and completely free to use.

2. Select your healthcare agent.

Your agent will have a lot of authority, so you should choose someone you trust to have your best interests at heart. It’s a good idea to speak to this person beforehand and make sure they’re willing to be your agent. You can also share the details of your medical power of attorney with them once it’s finished to give them an early understanding of your wishes.

3. Determine which medical decisions your agent can make on your behalf.

You can specify whether they can make choices about treatments, surgeries, long-term care, and end-of-life decisions. If you use FreeWill to make your medical power of attorney, we provide prompts to help you record your values and preferences.

4. Complete the form, and sign and witness it according to the laws in your state.

In some states, you may be required to get your power of attorney form notarized before it’s considered legally valid. Some states also require more witnesses or the signature of your agent. If you use FreeWill, we provide state-specific instructions to execute your document.

5. Distribute your medical power of attorney form.

Give a copy of your medical power of attorney form to relevant parties, including your agent and your primary care doctor. If your treating physician doesn’t already have a copy, your agent will need to provide the form as proof of their position before they’re allowed to make any healthcare decisions for you.

6. Store your medical power of attorney form somewhere safe.

Keep your medical power of attorney form in a safe place with your other estate-planning documents. This could be in a fireproof safe in your home, a safe deposit box, or at a trusted attorney’s office. Unlike a will, photocopies of the medical power of attorney are generally accepted, so you can make as many copies of the signed document as you need.

7. Review and update your forms regularly.

Regularly review your medical power of attorney document and update it as your circumstances change. We recommend revisiting your medical power of attorney — and other estate planning documents — every three to five years. You should also update it if you’re preparing for a medical procedure or receive a new health diagnosis.

How to revoke or change a medical power of attorney

You can change, revoke, or cancel your medical power of attorney at any time, as long as you have the mental capacity to do so.

There are two ways to revoke your medical power of attorney:

• Create a new medical power of attorney document that reflects your current wishes. In it, you can name a new healthcare agent or change your current agent’s responsibilities.
• Fill out a revocation of power of attorney form, and have it witnessed and notarized. This document indicates that you no longer want your chosen agent to act as your medical power of attorney.

Once you’ve created either of these documents, let your original healthcare agent know you’ve revoked their power of attorney. You should also reach out to third parties who have your power of attorney on file, like your primary care doctor, to let them know about the revocation. And it’s a good idea to collect and destroy any copies of the old document to avoid confusion.

Frequently asked questions

What’s the difference between a medical power of attorney and a DNR?

Both medical powers of attorney and DNRs  (“do-not-resuscitate" orders) are healthcare legal documents, but they serve different purposes. A medical power of attorney lets you appoint someone to make healthcare decisions on your behalf. A do-not-resuscitate (DNR) order is a different legal document that tells healthcare providers not to perform CPR if you stop breathing or your heart stops beating.

Is a medical power of attorney the same as a patient representative?

No — a medical power of attorney and a patient representative are different roles.

A patient representative is a healthcare professional who’s often the first point of contact for a patient in a hospital. A patient representative guides the patient through the check-in process, helps them understand their care options, and explains procedures and costs. On the other hand, a medical power of attorney is a trusted individual appointed by the patient to make decisions for them if they’re incapacitated.

Can your healthcare agent access your medical records?

Yes — if your medical power of attorney has the correct HIPAA provisions, your healthcare agent will be able to access your medical records to make informed decisions about your care. This is why it’s important to nominate a trusted individual for this role.

FreeWill’s advance healthcare directive form includes HIPAA authorization, ensuring your agent will have the access they need to make informed decisions.

Is your spouse automatically your medical power of attorney?

No, your spouse doesn’t automatically become your healthcare agent unless you’ve listed them as your agent in a legal medical power of attorney document. However, under state law, your spouse may be able to make health care decisions for you if you are incapacitated even without a medical power of attorney.

In any event, it’s a good idea to create a medical power of attorney even if you want to name your spouse as your agent.

Who makes medical decisions without a power of attorney form?

If you don’t have a medical power of attorney form, state law dictates who can make decisions for you. Your spouse may be able to make these decisions, or a court may have to appoint a healthcare agent based on state laws. See the section above to learn more about what happens if you don’t have a medical power of attorney.

Does a medical power of attorney need to be notarized?

In some cases, yes — a medical power of attorney may need to be notarized to be valid. However, execution requirements can vary from state to state, so make sure you understand the laws where you live. If you use FreeWill to create your document, we remove the guesswork by providing instructions specific to the state where you live.

Medical power of attorney vs. guardianship: What’s the difference?

A guardian is a person who’s legally responsible for meeting your needs, from medical care to emotional wellbeing. A guardian would only become relevant for you as an adult if you were incapacitated without a medical power of attorney. If this happened, the court may step in to appoint a guardian for you.

Guardianship proceedings can be complicated, lengthy, and costly — both emotionally and financially. Having a medical power of attorney, along with a durable financial power of attorney, can make a guardianship proceeding unnecessary.

A medical power of attorney creates peace of mind

None of us can predict the future. With a medical power of attorney, you can make sure you and your loved ones are prepared for any medical situation that may arise.

If you're ready to take the next step in protecting yourself and your loved ones, consider creating your free advance healthcare directive (which includes a medical power of attorney) using FreeWill. Our free, easy-to-use platform will guide you through the process, giving you peace of mind knowing that your healthcare wishes will be respected if the need arises.