Powers of Attorney and Health Care Directives

Contents

1. The first document, for money
2. The second document, for care
3. When each takes effect
4. Who may serve and what they need to know
5. How few people sign
6. What the documents cannot do
7. Where the papers belong
8. A long campaign

Brent O’Mara has sat with clients through divorces, deaths in the family and other transitions, and the transition these two documents govern is the one that comes before death, when a person is alive but can no longer decide. The process runs in steps. A person signs, while healthy, a durable power of attorney naming someone to handle money and an advance health care directive naming someone to handle medical choices. Copies are handed out. Years may pass. Then an illness or accident takes away the ability to act, a physician records that fact, and the named people step in. At death both documents stop, and a different set of papers takes over.

The first document, for money

The Caregiver’s Handbook published by PBS describes a durable power of attorney as a document granting a person, called the attorney in fact, the legal power to perform on behalf of the grantor certain acts spelled out in the document, usually real estate, banking and financial transactions, personal and family maintenance, government benefits, and estate, trust and beneficiary matters.¹ The power is effective immediately and continues even if the grantor becomes disabled or incompetent.¹ In an American College of Trust and Estate Counsel video, an elder law fellow calls it the most essential legal document a person can have and explains the word durable: once signed, the power survives incapacity, so the appointed person can pay bills and keep financial affairs in order after a stroke or other disabling event.³

Figure

How the documents come into use

1. 01
   SignThe person names an attorney in fact for finances and a health care agent, usually on forms that vary by state.
2. 02
   Store and shareCopies go to the agents, the doctor and the family, since a directive in a drawer helps no one.
3. 03
   Capacity is lostA health care proxy takes effect only when a physician determines in writing that the person cannot make or communicate decisions.
4. 04
   The agent actsThe attorney in fact pays bills and manages property; the health care agent decides treatment, guided by the living will.
5. 05
   DeathBoth documents end, and the will, trust and beneficiary forms take over.

Without one, the same video warns, a family may have to go to court to pursue a legal guardianship, a time consuming and expensive process that invades privacy and may not deliver the relief sought.³ The Consumer Financial Protection Bureau treats the agent under a power of attorney as one of four kinds of fiduciary, alongside court appointed guardians, trustees and government payees, and publishes a guide for each on managing someone else’s money.¹⁰

The second document, for care

Advance directive is an umbrella term. The handbook says the forms vary by state but generally include a living will, a health care power of attorney or health care proxy, and do not resuscitate or do not intubate orders.¹ The National Council on Aging describes the living will as a guidebook for doctors, answering whether life should be extended at all costs, which treatments are wanted and for how long, how pain should be managed and whether organs should be donated, and the medical power of attorney as the document naming a proxy to decide based on what that person knows of the patient’s wishes and values.⁴ There is no legal requirement to name a proxy, the council notes, but without one state law decides who speaks, and it may be someone the patient has never met.⁴

When each takes effect

The two documents switch on differently. A financial power of attorney is typically effective at signing.¹ A health care proxy takes effect only if a physician has determined in writing that the person lacks the capacity to make or communicate health care decisions, and the council stresses that directives never displace a patient’s own choices while the patient can still state them.¹⁴

Figure

Two documents for two kinds of decision

	Durable power of attorney	Advance health care directive
Who it names	An attorney in fact or agent	A health care agent or proxy
What it covers	Banking, real estate, benefits, bills	Medical treatment and end of life care
When it starts	Often immediately, and it survives incapacity	Only when the person cannot speak for herself
Who drafts it	Usually a lawyer, to meet legal requirements	Free state forms suffice; no lawyer is required
When it ends	At death	At death

Who may serve and what they need to know

Any competent adult may serve as a health care agent, the handbook says, except someone who works at the facility where the patient is being treated, and the agent need not be the same person who handles finances.¹ The agent gets full access to confidential medical records, so the document should carry language addressing federal privacy law.¹ The council’s advice is that a proxy needs real conversations with the patient in advance, since no document anticipates every situation.⁴

How few people sign

NPR reported a Health Affairs analysis of 150 studies published between 2011 and 2016, covering nearly 800,000 people, which found that 37 percent had completed some kind of advance directive, with people over 65 more likely to have done so than younger adults, 46 percent against 32.⁶ A New York Times columnist in 2009 cited a 2006 Pew survey that put the share with a living will at 29 percent and a 2007 study that found two in five with directives.⁷ The Pew Research Center’s 2025 survey of 8,750 adults found 31 percent with a living will or advance directive, rising to 44 percent in their 60s, 64 percent in their 70s, and roughly four in five at 80 and older.⁹

What the documents cannot do

Even a signed directive may not be followed. A second Times column described a national study of more than 6,000 people over 60 who died between 2000 and 2010, in which the share with directives rose from 47 to 72 percent, yet having one had little effect on whether people were hospitalized or died in hospitals.⁸ Directives sit in safes and drawers, reach the family doctor but not a new specialist, and get lost between a hospital and a nursing home.⁸ The advice the column gathered was to appoint a strong proxy and to hand the forms over at every hospitalization and every new physician.⁸

Figure

Who has a directive

U.S. adults with a living will or advance directive, 2025

31%

adults in their 60s

44%

adults in their 70s

64%

adults 80 and older

about 80%

Where the papers belong

NewsHour’s checklist ends with a practical item: a central place for wills, trusts and powers of attorney, or a document saying where they are, so family members can find them.² AARP suggests giving the doctor a copy to put on file and placing the living will in a registry, and keeping any do not resuscitate order where emergency personnel will see it.⁵ These papers sit beside the others in a plan, the will and the revocable living trust, but they are the only ones that work while the signer is alive. Which documents a person needs, and what powers they should carry, depends on individual circumstances; qualified professionals in law and in tax can draft them to fit.

A long campaign

The NPR report noted that health professionals had promoted advance directives for nearly fifty years by 2017, with only about a third of adults holding one.⁶ The campaign has had its successes, the Oregon registry that the Times column described among them, and the Pew numbers show that most people do eventually sign, in their seventies and eighties. The echo is in the timing. The documents are drafted for the healthy and signed, most often, by the old, which is to say they are signed close to the moment they are needed and sometimes after it. Fifty years of promotion changed the forms and the registries; the human habit of waiting is what it has not changed.