Power of Attorney for Health Care: What Powers Can You Grant?

A durable power of attorney for health care lets you choose someone you trust to make medical decisions for you if you can't speak for yourself. Whether you have clear wishes about your treatment or want to leave choices to your agent, a health care power of attorney (also called a medical power of attorney or medical POA) makes sure your care aligns with your values and preferences.

When you set up a health care power of attorney, you choose what powers your agent will have. This article explains those powers and helps you decide what will work best for you.

What Is a Health Care Power of Attorney?

A health care power of attorney is a legal document that allows you to name someone—your agent, proxy, or surrogate, depending on your state—to manage your health care and make medical decisions on your behalf.

If you don't have a health care power of attorney, state law decides who will make your medical decisions if you can't. States use a priority list of family members, usually starting with your spouse, then adult children, parents, and other relatives. This order might not reflect your wishes, and someone you wouldn't have chosen could end up making important decisions about your care. Family disagreements can also arise, which may delay treatment while doctors try to figure out what you would want.

Making a health care power of attorney while you are still able means your chosen representative can make decisions that match your values and wishes.

How Does a Medical Power of Attorney Grant Power to an Agent?

To create a POA for medical decisions, you fill out a document that includes the designation of your health care agent and lists the powers they will have. Many states offer official forms, or you can work with an estate planning lawyer or use reliable online tools. No matter which option you choose, you must make sure your document complies with your state's legal requirements.

Your agent's authority typically begins when a doctor certifies that you're unable to make your own medical decisions. This might happen if you are:

• unconscious or disoriented due to illness or an accident
• experiencing cognitive impairment or dementia, or
• suffering from a mental health condition.

Once the doctor decides you can't make decisions, your agent can step in. Your agent keeps this authority until you can decide for yourself again or until you die.

While most states give power to your appointed health care agent only when you are incapacitated, some allow you to make your medical power of attorney effective immediately. This can be helpful if you want to avoid the delays of proving you can't make decisions or if you want your agent to be able to assist with your health care before you are incapacitated.

What Powers Can a Health Care POA Include?

Rules vary by state, but most allow health care agents broad authority to make medical decisions. With some exceptions, including any limits you set, your agent can usually make any health care choices you could make for yourself. These decisions may involve:

• choosing your doctors and other care providers
• selecting treatment facilities, including hospitals or nursing homes
• what medical treatment you receive
• who has access to your medical records
• making end-of-life care choices, including whether to continue life support and how to keep you comfortable (if you want your agent to authorize the withholding of artificially administered nutrition or hydration, you will usually have to specify this in your health care POA)
• making after-death decisions, including authorizing an autopsy or organ donation

Understanding medical power of attorney rights and limitations is essential. States usually do not let health care agents agree to involuntary mental health treatment or sterilization. Also, a health care agent can only make health care decisions. They can't handle your finances, property, or legal matters unless you give them that power in a durable power of attorney for finances.

Most importantly, none of this takes effect unless you can't speak for yourself. And your agent must legally follow the instructions you set out in your health care directives, including your wishes about the care you want or don't want.

The rest of this article goes into more detail about some essential powers you might want your health care agent to have.

Your Health Care Agent's Powers at the End of Life

As you near the end of life, some of the most significant decisions are about whether to continue treatments that only extend the dying process. These choices can be very hard for family members. If you clearly give your agent the power to make these decisions, it can help guide your loved ones during a tough time. By giving your agent specific authority for end-of-life care, you make sure someone you trust can act for you when it matters most.

Withdrawing Life-Prolonging Procedures

Your health care directive should state whether your agent can stop or withhold life-prolonging treatments when you are close to death. Life-prolonging procedures, such as CPR, dialysis, artificial breathing, and major surgery, may only extend the dying process or keep you permanently unconscious without real hope of recovery.

In most states, agents automatically have this authority. In some states, you must clearly grant this power in your health care document. Many forms ask you to sign or initial a section to indicate that you understand and agree to grant or deny this power.

Keep in mind that giving this power does not tell your agent what choice to make. You can add separate instructions about when you do or do not want life-prolonging treatments. Your agent must follow your wishes. This power just lets your agent act on your behalf.

Grant this power if you want your agent to be able to refuse some or all life-prolonging procedures when you're terminally ill or permanently unconscious.

Withdrawing Food and Water

When you are near death or can't communicate, you probably won't be able to eat or drink as usual. In these cases, doctors can give you nutrition and fluids through a vein or a tube into your stomach. This is called "artificially administered nutrition and hydration" or tube feeding.

Although this is a life-prolonging procedure, it's essential to address it separately in your advance directive. Many states require you to give clear instructions about tube feeding because it is a very personal and sometimes controversial issue for families at the end of life. Being clear about your wishes can help prevent confusion and conflict during a hard time.

Grant your agent this power if there are any circumstances under which you wouldn't want to receive artificially administered nutrition and hydration.

Your Health Care Agent's Powers After Your Death

Most health care decisions happen while you are alive, but some important choices come up after your death. Your health care power of attorney can authorize your agent to handle decisions about organ donation, autopsy, and what happens to your remains. Giving these powers means someone you trust can follow your wishes or make informed choices for you if you haven't said what you want.

Authorizing Organ, Tissue, or Body Donation

You can authorize your agent to carry out your wishes for organ, tissue, or body donation after your death—or you can withhold this authority.

In most cases, it is a good idea to give your agent this power. If you want to be a donor, your agent can ensure the process proceeds quickly, since donations must be made soon after death. If you do not want to donate, your agent can stand up for your wishes, even if your family disagrees. If you are unsure, your agent can make the best decision for you when the time comes.

If you grant this authority, you can include your preferences in your health care directive, stating whether you want to donate or not. Your agent must follow any instructions you provide. Without this authorization, doctors will ask your next of kin to decide about organ donation.

Authorizing an Autopsy

State law may require an autopsy in cases of sudden or suspicious death, and medical examiners don't need permission to proceed. In other situations, your family might request an autopsy to understand the cause of death or contribute to medical research. You can authorize or refuse an autopsy, or let your agent decide.

Authorizing an autopsy. Consenting to an autopsy allows your family to get more information if they need it. An autopsy can provide comfort to grieving relatives and may reveal hereditary conditions that could help other family members with early diagnosis and treatment.

Refusing an autopsy. You might decline for religious or personal reasons. Cost is also a consideration—a complete autopsy can cost several thousand dollars and typically isn't covered by insurance. In rare cases, research programs (such as those for Alzheimer's) may cover autopsy costs if you're enrolled before death.

Letting your agent decide. Many people prefer this option because whether an autopsy is helpful depends on unpredictable circumstances. If you discuss your general feelings with your agent, they can make an informed decision when the time comes.

Authorizing Disposition of Your Remains

Unless you specify otherwise, your closest family members will decide whether your body will be buried or cremated. Here are some ways that you can express your wishes about this decision.

Directing your agent to follow your existing wishes. You can tell your agent to follow plans you have already made, such as a letter that lists your choices about burial, cremation, and funeral or memorial services. In your health care power of attorney, describe the document or plans you have made so your agent and others can find your papers and carry out your wishes when needed.

Letting your agent decide. You can choose to give your agent the power to decide what happens to your body after you die. You can leave these choices entirely to your agent, or you can discuss your wishes with your agent and loved ones to clarify them for everyone.

Letting family decide. If you do not want your agent to make decisions about burial or cremation, you can choose not to give them this power. In that case, your closest family members will decide what happens to your remains, following any wishes you have shared.

State Specific Powers for Health Care Agents

Several states require you to decide about very specific powers you can give your agent. If you live in one of the states listed below, you will need to think about these extra powers when making your health care directive. Here is a short overview of each one.

New Hampshire

New Hampshire allows you to authorize your agent to override your objections to treatment under certain circumstances. Like most states, New Hampshire requires your agent and doctors to inform you of proposed treatments. Normally, they cannot provide or withhold treatment if you object, even if you're incapacitated.

However, New Hampshire law permits you to state that your agent should carry out your treatment wishes when doctors determine you're no longer capable of making informed decisions—even if you verbally object at the time. (N.H. Rev. Stat. § 137-J: 5(IV).)

You might grant this authority if you're concerned about Alzheimer's or severe dementia, which could cause you to resist treatment decisions you made while capable. This power makes it easier for your agent to follow your wishes, but think carefully before granting it. It gives your agent enormous authority, so be certain you completely trust them and they understand your care preferences.

Utah

In most states, health care agents automatically have the power to admit you to a nursing home or long-term care facility. In Utah, however, you must specifically authorize your agent to admit you for anything beyond a short-term stay for recuperation. (Utah Code § 75-2a-117.)

Granting this authority does not mean you want to go to a nursing home. Your agent still has to follow your wishes. For example, if you would only agree as a last resort, make sure your agent knows this. Without this authority, your agent might need a court's approval to admit you to long-term care, even if your doctors think it is needed. This is a very personal decision. Talk with your agent about your preferences so they know what you want.

Virginia

Virginia law asks you to consider four specific powers when creating your health care POA:

Authorizing mental health treatment. This power allows your agent to admit you to a mental health facility after a physician certifies you need treatment. Without it, your agent must obtain court permission. Grant this power if you trust your agent completely and want to avoid court involvement should you need mental health care.

Authorizing treatment over your objections. Like New Hampshire's law (described above), this allows your agent to carry out your treatment wishes even if you verbally object when you're incapable of making informed decisions.

Continuing to serve despite your objection. This power lets your agent continue representing you even if you protest their authority while incapacitated. Without this power, your objection would revoke your agent's authority and transfer it to your alternate agent. If no alternate is available, Virginia law determines who makes your medical decisions.

Enrolling you in health care studies. This allows your agent to enroll you in qualified medical research. You can limit participation to studies that may benefit you personally, or allow studies that advance scientific knowledge without direct personal benefit. Your agent must act in your best interests and respect your known beliefs and values.

Wisconsin

You will be asked to decide whether your agent can admit you to a nursing home. For more information, see the note for Utah, above.

Vermont

Like New Hampshire and Virginia, Vermont allows you to authorize your agent to override your objections to treatment when you lack the capacity to make informed decisions. However, Vermont has strict requirements to protect your rights: Your health care directive must specifically describe which treatments your agent can authorize in these situations. The document must be signed by four people: you, your agent, your health care provider, and an official such as a lawyer, hospital ombudsman, or probate court official. (Vt. Stat. Ann. tit. 18, § 9707(h).)

Because these rules are complicated, talk to an estate planning attorney if you want to grant this power in Vermont.

Nominating a Guardian

Your health care agent usually handles all medical and personal care decisions. But in rare cases, a court may need to appoint a guardian (also called a "conservator of the person") to make broader personal decisions, such as where you live, what you eat, or what your daily activities will be, if these go beyond your agent's authority. This can happen if you need more help than just medical care.

Your health care power of attorney lets you name your preferred guardian. Choosing your agent for this role shows you want them to speak for you in all health and personal matters.

Courts almost always honor guardian nominations. A court will only reject your choice if someone proves your nominee wouldn't act in your best interests, which rarely happens. If your nominated agent is unavailable or unwilling to serve as guardian, the nomination automatically passes to your alternate agents in the order you designated.

If you don't nominate your agent. If you don't nominate a guardian and a court must appoint one, state law determines the outcome. Some states automatically nominate your health care agent. Others give priority to your spouse (or domestic partner), then close relatives, according to a statutory hierarchy.

Nominating a guardian or conservator of your estate. While a guardian of your person handles your personal care, a guardian of your estate manages your finances. If you create a durable power of attorney for finances, you can nominate your financial agent to serve as guardian of your estate if needed.

More Information About Advance Health Care Planning

Making a power of attorney for health care decisions is one of the best ways to make sure your medical wishes are followed if you can't speak for yourself. By carefully considering which powers to give your agent and discussing your values and preferences with them, you provide clear guidance that can make tough decisions easier during a medical crisis.

For more information, see the following articles:

• What Is an Advance Directive?
• Naming a Health Care Agent and Primary Physician
• Advance Health Care Planning: Specifying Your Wishes
• Witness and Notary Requirements for Advance Directives
• Storing, Sharing, or Revoking Your Medical Power of Attorney

Learn more about making health care directives with WillMaker.