Health Care Power of Attorney: A valuable legal instrument

While estate planning is likely not a top priority for most individuals, one document remains crucial to possess no matter what— the health care power of attorney. This is a generally pro-forma document included with most estate planning engagements that may be given minimal thought or attention at the time.  But most individuals over age 18 should locate or consider implementing this one simple yet valuable legal instrument. 

A health care power of attorney permits an individual to appoint someone – an “agent” – to make medical decisions on his or her behalf when the individual is otherwise unable to do so, perhaps due to incapacity or inability to communicate.  Equally important, the power should include specific permission to the health care provider (physician or other caregiver) to discuss protected health care information with the designated agent in compliance with HIPAA.

Example:  A college student over the age of 18 residing in another city falls ill and is admitted to the hospital.  The parents are notified that their child is in the hospital, but absent a specific release in a health care power of attorney, the physician may not be able to discuss any of the particulars of the child’s situation, including ailment, condition, severity, etc.  Imagine the stress these unknowns can place on family members during their journey to the hospital.

Key questions most individuals should review immediately:

  • Sometimes, individuals aren’t aware of what documents they have within their estate plans.  Occasionally, a document was prepared but never signed or properly executed.

For example:

  • Is the agent geographically near and able to meet with physicians in person?
  • Is my agent aware of the appointment and understand the responsibility involved?
  • Have I discussed any specific health care wishes with my agent?
  • Does my agent have an actual copy of the power, or know where it is located?

  • Married couples usually designate each other as primary agent, but they could become ill at the same time, necessitating a successor.

  • For example, parents frequently name children collectively to serve, but disagreements can create tension and conflict.

  • Dated powers may not include important provisions based on changes to the local power of attorney act and/or may not include the crucial HIPAA permissions if the power predates HIPAA (1996).

  • Many documents include space for a principal to indicate certain specific health care wishes that may be unknown or counter-intuitive to the designated agent.
  • Many form documents also include default “living will” check-box options stating the principal’s wishes with regard to life sustaining treatment in the event he or she is in a terminal condition or persistent vegetative state.  Of course, it may make sense to grant the agent the power to choose the physician who makes such designation as well.

For individuals who have not created such a document but now wish to do so:

• An attorney is the best option to have a document prepared in compliance with state law, as well as to ensure proper formalities in execution.  Of course, it may be difficult or impossible to meet in person to sign and notarize the power.  Note that many states have recently adopted E-notarization standards that enable a document to be notarized electronically.  The attorney can provide additional guidance on proper execution in light of current events.

• Most states also include a “statutory form” document that can be taken straight from the state statute (usually available online) and serves as an acceptable power of attorney in most respects.  In fact, most forms provided from attorneys use such language verbatim.

• The American Bar Association website has a potentially useful summary of state health care power of attorney statutes here: State Health Care Power of Attorney Statuses.

It's wiseto plan for potential health and life issues that may arise in the future. As a first step, it may make sense to prioritize a focus on one’s health care power of attorney.


The Nautilus Group® is a service of New York Life Insurance Company.  Nautilus, New York Life Insurance Company, its employees or agents are not in the business of providing tax, legal or accounting advice. Individuals should consult with their own tax, legal or accounting advisors before implementing any planning strategies. © 2020 New York Life Insurance Company. All rights reserved. SMRU 1853129 Exp. 9/22/2024.