The legal names for health care proxy and power of attorney can be very confusing. Concerning health care proxy, each state has different terms they use to describe this vital function. There is no nationally consistent label. Some other names that define health care proxy are healthcare agent, durable medical power of attorney, and healthcare agent.
Jump ahead to these sections:
- Overview: Health Care Proxy vs. Power of Attorney
- What Are the Differences in Powers Between a Power of Attorney and a Health Care Proxy?
- Can a Health Care Proxy or Power of Attorney Override Each Other?
- Should You Have a Health Care Proxy, Power of Attorney, or Both?
It is essential to know what the term is in your state so that you use the correct form when you get down to the business of designating someone as your health care proxy. Using the wrong document could mean that it’s not legally binding. Meeting with an estate planning attorney can clarify the documents you need for complete advance and end-of-life planning. An attorney isn’t necessary but could provide a one-stop shop for all of your advance planning tasks.
Although it’s human nature to avoid making decisions about a potential crisis that leaves you unable to manage your own health care, it can and does happen. Life is unpredictable, and making plans in advance will allow you to make decisions that reflect your wishes. Both the health care proxy and power of attorney forms authorize a trusted person to make decisions for you if you’re unable to make them yourself.
Overview: Health Care Proxy vs. Power of Attorney
To clarify, the term power of attorney does not apply to healthcare. However, medical power of attorney is an interchangeable term used in place of a health care proxy.
So it's important to understand the distinction. We’ll talk about the role of a health care proxy and how it differs from a power of attorney in the future planning of your healthcare and finances.
It might seem daunting at first to consider establishing these documents, but once you have gone through the process, you can be confident that what you want will be honored.
What Are the Differences in Powers Between a Power of Attorney and a Health Care Proxy?
In short, power of attorney allows someone else to make decisions on your behalf with regard to financial matters. A health care proxy is similar, but it allows someone to make medical decisions for you rather than financial decisions.
To understand the differences between power of attorney and health care proxy, it’s important to review each of these terms. Here’s what power of attorney and health care proxy really mean.
What is a power of attorney?
There are different types of power of attorney, but unless it’s specifically a “healthcare power of attorney,” they typically do not pertain to healthcare.
A power of attorney is a legal document with which you (the “principal”) authorizes someone else (your “agent” or “attorney-in-fact”) to represent you and make decisions on your behalf. In some states, the principle can grant the agent healthcare decisions, but most require a separate document for health care.
Here are some of the ways in which a power of attorney is used:
- A “non-durable” or “general” power of attorney is time-limited and used only if you’re not available for financial decisions. For example, it’s not unusual for a person to designate a temporary power of attorney to sign legal or real estate transactions if they can’t be present and there is a deadline for the signature.
- A “durable” power of attorney is when your agent makes financial decisions if and when you become incapacitated. A durable power of attorney can also designate an agent to handle your affairs while you still have the capacity to do so yourself, if you so choose. The authority is “durable” because it continues when you are incapacitated and until you die.
- A “springing” power of attorney appoints an agent ONLY in the case that you become incapacitated. Otherwise, your agent has no powers until you become unable to manage your financial affairs, and a power of attorney “springs” into action.
- A “medical” or “healthcare” power of attorney is unique because it allows the designated person to access medical records and information if the document specifies as much. In other words, you can have a healthcare power of attorney that only takes effect upon incapacity or one that is in effect immediately. The advantage of appointing a medical power of attorney with immediate authority is that it makes it easier for family members to advocate on behalf of a loved one. Obtaining medical documents and speaking with healthcare providers can be arduous and complicated without a medical power of attorney.
A power of attorney has the role of managing all aspects of a person’s estate, property, and handling the will. An agent must avoid conflicts of interest by not commingling funds, combining property, or in any way benefiting financially from the arrangement unless expressed in the will.
As you can see, it is an enormous responsibility; therefore, you should select your agent very carefully. Most people choose a spouse or partner, but not everyone does. You can designate a parent, sibling, niece, nephew, or even a private company. The person you choose should feel comfortable with the complexities of managing your estate and the time necessary to make responsible decisions.
What is a health care proxy?
Think of a health care proxy as a person who stands in your shoes if you cannot make healthcare decisions. In some states, this same document will allow your proxy to obtain medical information even if you can make decisions. Other states will only let the health care proxy assume responsibility if you’re incapacitated due to illness, accident, or cognitive impairment.
Here are the roles of a health care proxy:
- Making decisions that reflect your advance directives;
- Deciding whether you should receive specific treatments, medicines, or surgeries;
- Carrying out your wishes concerning organ donation;
- Determining who should have access to your medical records;
- Deciding whether to admit you to a hospital, nursing home, or assisted living;
- Carrying out your living will by adhering to your end-of-life wishes to the best of their ability; and
- Managing your health care in a way that’s consistent with your values and stated preferences.
As with your power of attorney, you should choose your health care proxy with great care. Some states permit you to name more than one health care proxy in the event that the one in the first position is not available. Other states do not allow this.
You can choose any health care proxy over 18, but make sure the person you select understands and accepts the responsibility. If your health care proxy needs to take over, it can be extremely time-consuming and complicated.
Can a Health Care Proxy or Power of Attorney Override Each Other?
A health care proxy governs health care, and power of attorney is responsible for finances. They are two different authorities; therefore, they can’t override each other. However, if the health care proxy is different from a power of attorney, it’s not unusual for the two agents to disagree about decisions.
For example, let’s say you are incapacitated, and the healthcare power of attorney wants to place you in an assisted living community. A power of attorney may object to the cost, and this could create a conflict. Appointing the same person as a health care proxy and power of attorney would avoid this scenario.
In cases where there are two health care proxy documents, most states recognize the most recent one. Usually, this happens when someone changes their mind about who they want as their health care proxy and does not void the original document.
The other potential situation involves a disagreement between family members about health care proxy or power of attorney. A family member could produce an earlier document and claim that their appointment takes precedence based on the allegation that the person filled out a later one under duress or incapacity. Those cases usually go to court to resolve.
Should You Have a Health Care Proxy, Power of Attorney, or Both?
Everyone over the age of 18 should have both a health care proxy and power of attorney. That said, revisiting these documents is crucial since your financial and healthcare status changes.
Over time, you may change your mind about the health care proxy or power of attorney, and you have the right to do that. But if you delay and become incapacitated in the meantime, you are stuck with the person you selected initially. The consequences of not having either a healthcare power proxy and power of attorney can be stressful and consequential. Here’s why.
Why you should have a health care proxy
Here are some of the reasons you may decide you want to assign a health care proxy:
- Without a health care proxy, medical providers are legally obligated to resuscitate and treat you regardless of the outcome.
- There is no one to advocate for you or carry out your healthcare wishes without a health care proxy.
- Without a health care proxy, family members could disagree about medical interventions and even end-of-life and organ donation decisions.
- Without a health care proxy, the court may appoint a guardian to handle your health care if a responsible family member is unavailable.
Why you should have a power of attorney
You might also want to assign a power of attorney, whether it’s the same person assigned as your health care proxy or another loved one. Here are some of the reasons why:
- The court may appoint a family member to handle your financial affairs without a power of attorney, and you may not want that person in charge. Families can have lengthy and costly court battles over this issue. By deciding on a power of attorney, you can prevent potential conflict.
- Without a power of attorney, there’s no one to pay your bills (for example, if you have a mortgage or live in assisted living), make bank deposits, or manage your business and insurance.
- If you don’t have a power of attorney and your family can’t decide who should assume that role, the court may appoint a professional conservator to manage your affairs. A conservator can be expensive and unpleasant for the family.
- You may think that you don’t need a power of attorney if you don’t have much in the way of assets. But everyone has something, even if it’s just sentimental personal belongings. If you don’t want to appoint a financial power of attorney in this circumstance, at least consider writing a will that states who or what organization you wish to have your personal belongings.
Choosing Your Health Care Proxy and Power of Attorney
Now that you have a better idea of the value of a health care proxy and power of attorney, you can start thinking about appropriate candidates. Once you identify those trusted people to stand in your shoes, discuss their responsibilities with them and get their permission.
All advance directives, including health care proxy and power of attorney, should be revisited often and distributed to family members. Your peace of mind is your family’s peace of mind, and that’s invaluable.