A medical power of attorney is a legal assignment that gives someone the authority to make medical decisions on your behalf if you are incapacitated. By definition, you must make this a durable power of attorney grant. Although power of attorney is an important part of planning for your estate and aging, medical power of attorney applies more broadly than that. A medical power of attorney can be important at any part of life, to help make sure that you are protected in case of sudden illness or accident. Here’s how it works.

If you want to create an estate plan, a financial advisor can help you determine which power of attorney you may need for your finances and health.

Power of Attorney Is Highly Jurisdictional

As a threshold matter, it’s important to understand that power of attorney is almost entirely governed by state law. Both medical and financial power of attorney assignments vary between jurisdictions, sometimes quite broadly. 

For example, in some jurisdictions a power of attorney grant will always expire upon your incapacitation unless you state otherwise, while other jurisdictions automatically make power of attorney durable. Most jurisdictions recognize the binding authority of an individual’s health care directives in a living will, but a handful treat these documents as advisory only. 

As a result, power of attorney is an area of the law with particularly high variability. So you should make sure to look up how these rules apply to your own area, specific situation and always consult a lawyer before making any individual power of attorney decisions.

What Is Durable Power of Attorney?

In most states, a standard power of attorney assignment automatically expires whenever the grantor is considered medically or legally incapacitated. For example, if you are unconscious or declared incompetent, any existing power of attorney grants you have made will end. This is intended to protect the grantor. It ensures that your agent cannot act against your interests in a situation where you cannot revoke their authority or undo their actions.

Durable power of attorney is a grant of authority which survives your incapacitation. If you give someone durable power of attorney, their authority to act on your behalf will continue even if you are unconscious, incapacitated or absent. 

Durable power of attorney is often an essential element of planning for your estate and aging. Although calling this estate planning is something of a misnomer, as all power of attorney grants end upon the grantor’s death. With financial power of attorney, this lets you guard against late in life mental decline. A durable power of attorney can let you name a trusted loved one or third party to help make decisions on your behalf if you are no longer competent to do so.

A medical power of attorney can help with the other side of physical incapacitation, protecting your medical interests.

What Is Medical Power of Attorney?

Medical power of attorney has several different names. Some states call this a health care directive, others call it a health care proxy.

In all cases, this is a power of attorney grant that applies specifically to medical decisions. With medical power of attorney, you name a third party who will act with your authority to make medical decisions on your behalf. This can range from simple choices such as medication directives to, in the most extreme circumstances, end-of-life decisions. 

By definition, a medical power of attorney must always be a durable grant. This is because, unlike with financial power of attorney, a medical power of attorney agent only has authority to speak on your behalf if you are incapacitated. In most cases this means that you must be unconscious or otherwise unresponsive before this power of attorney takes effect. In some situations, medical power of attorney may apply due to incompetence, but this usually requires a pre-existing court order. If you are conscious and responsive, doctors will typically defer to your wishes. 

As a result, medical power of attorney is considered a durable, springing power of attorney. This means that it only takes effect under certain conditions (the “springing” aspect of the grant) and continues after you are incapacitated (the “durable” aspect of the grant). 

In your power of attorney grant, you can also make your wishes known regarding treatment and other medical decisions. As with all grants, these are considered binding instructions to your agent. While some states will place restrictions on this, typically related to end-of-life choices, your agent is otherwise required to act in good faith to follow your instructions and make sure you get the care you requested.

Like financial power of attorney, medical power of attorney is an important part of planning for aging. You want to make sure that you are protected against mental decline. A medical power of attorney can help you make a clear statement of your wishes, and can let you name a trusted third party to ensure those wishes are carried out.

However, the value of a medical power of attorney extends considerably beyond estate and late-in-life planning. This document applies equally to an emergency situation such as an accident or sudden illness. That makes it valuable for any stage of life. If there is a crisis and you are unconscious or otherwise unable to respond, you don’t want doctors to waste their time trying to figure out who has the information and authority to make decisions on your behalf. A medical power of attorney can make that authority clear, so that a hospital knows who to speak with if you are unable to speak for yourself.

Bottom Line

A medical power of attorney is a form of durable power of attorney. It applies to health care situations. With this grant, your agent can make medical decisions on your behalf when you are unconscious, unresponsive or incompetent to make those choices for yourself.

Tips on Estate Planning With Power of Attorney

• A financial advisor can guide you in drafting a power of attorney so that it aligns with your financial and estate plans. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
• While it may be tempting to save some money and plan your estate by yourself, you should still be careful with these DIY estate planning pitfalls.

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