Key Takeaways

  • Medical and durable power of attorney (POA) are two important legal documents that do different things. 

  • A medical power of attorney allows an agent to make health care decisions if you cannot. 

  • A durable power of attorney enables an agent to handle financial and legal affairs if you become incapacitated and lose your mental capacity. 

  • Unlike a standard POA, a durable POA stays in effect even after the person who gave it becomes incapacitated.

  • Medical POA is limited to healthcare decisions, while durable POA covers financial and legal matters.

  • Forming a POA does not entail losing power while competent; instead, it is effective only if an individual becomes incapacitated.

  • POA documents must conform to state laws (sometimes, notarization or witnesses are needed). 

  • An attorney can help ensure proper POA execution. Post a job on UpCounsel to find a lawyer in your state who provides POA services. 

 

Medical and durable power of attorney are two important legal documents for planning your future. However, there are significant differences between these powers of attorney documents.
 

This article will discuss their differences, why they matter, misconceptions, and legal considerations for both. 

 

What is a Medical Power of Attorney?


A medical power of attorney is a legal document you use to appoint someone — an agent or proxy — to make healthcare decisions if you’ve lost the ability to make decisions for yourself. 
 

It is a critical tool that can prevent you from facing undesired medical treatment should you lose the ability to communicate due to an accident, illness, or surgery. 
 

For instance, a medical POA might go into effect if you are unconscious after an accident. With a medical POA in place, someone you trust can make healthcare decisions based on your wishes.
 

Common situations that warrant creating a medical POA include: 
 

  • Having major surgery with anesthesia

  • Being in the hospital for a long time

  • Being near the end of life

  • Any time you are making decisions regarding treatment, medication, and procedures.
     

Without a medical POA, your next of kin cannot make decisions for your care that align with your wishes. 


 

What is a Durable Power of Attorney?

 

A durable power of attorney, by contrast, allows you to appoint an agent who can manage your financial and legal affairs if you lose mental capacity. 
 

Unlike a standard power of attorney, which expires if you lose mental capacity, a durable POA remains in effect. This way, your affairs are managed according to your wishes even when you can no longer make your own decisions.
 

A durable POA can be used to pay bills, manage bank accounts, sell or purchase property, and deal with insurance matters after you can no longer do so. 
 

A durable POA is a valuable tool to use in long-term planning, especially if you have been diagnosed with a degenerative illness or simply want to prepare for the unexpected.


 

Medical Power of Attorney vs. Durable Power of Attorney: Key Differences

 

Although both medical and durable powers of attorney are designed to act on your behalf when you cannot act for yourself, they are different in scope. 
 

A medical power of attorney is limited to healthcare decisions, whereas a durable power of attorney can be used for financial and legal decisions.
 

  • Medical POA: To make healthcare decisions (consent to or refuse treatment, choose a healthcare facility, etc) for you.

  • Durable POA: (Although some state laws are different, a durable POA is always limited to financial and legal affairs. It allows your agent to make decisions about your property, banking, and other legal matters.) 
     

Ultimately, a medical POA concerns your healthcare, while a durable POA concerns your financial affairs and legal interests.


 

How to Choose the Right Type of Power of Attorney for Your Needs

 

The appropriate POA will depend on your circumstances and wishes. Many people choose to have both because they serve different purposes. With both of these documents, your financial and healthcare concerns are covered. 
 

Sometimes, choosing a close family member or friend as your proxy or agent is appropriate.

Professional Proxies and Agents


If your situation is more complex — such as with a large estate, detailed financial issues, or complicated medical matters that call for a family advisor — appointing a professional advisor as your proxy could be the most appropriate option. 
 

A financial planner, attorney, or fiduciary with experience in estate planning or healthcare management could bring more objectivity and experience to the job. 
 

You might also want to consider a professional advisor if family challenges could impact the role of an advisor or executor or raise potential conflicts of interest.
 

Having an agent – professional or otherwise – makes decisions more likely to be made with a full and clear understanding of legal and financial implications, without error or emotional bias. 
 

A professional is even more likely to have fiduciary duties to act in your best interest – for instance, to protect your assets and ensure your healthcare wishes are carried out – and to use reasonable care and skill. 
 

You will know that, should the need arise, someone competent, trustworthy, and knowledgeable will act on your behalf.


 

Legal Considerations and How to Set Up a Power of Attorney


Creating a POA involves two key elements: selecting your agent and completing the legal documents required in your state. 

 

Your agent will have legal power of attorney, so choosing a person you trust who can take on the responsibilities is important. 
 

Check your state for the legal form to complete. Most states will require the POA form to be notarized or signed by witnesses.
 

If you’re serious about having one, consult an attorney in your state to ensure you’ve met all legal requirements and documented your wishes. 
 

Once you’ve completed the POA, provide copies to your agent, healthcare providers, and financial institutions as necessary. Keep the original in a safe place with your other estate planning documents. 


 

Common Misconceptions About Power of Attorney

 

There are several common misunderstandings about powers of attorney.
 

One of the most common is that when a POA makes someone your proxy, it gives them unlimited authority. In reality, a POA grants the authority only as spelled out in the document, and agents are legally obligated to act in their best interests.
 

Another fallacy is that a medical POA also covers financial affairs; rather, these cover very different territories, and you should have both in place if you want to plan for a full spectrum of medical care and financial protection.
 

Many people also believe that just by creating a POA, they are giving up the right to make decisions about their lives. However, they retain absolute control as long as they are competent, and POAs only go into effect if they become incompetent.


 

Conclusion: Protecting Your Future with the Right Power of Attorney

 

Having the right power of attorney is a tool to protect your future and ensure your wishes are followed if you become incapacitated. With these documents, someone you trust can make decisions about your healthcare and finances according to your desires. 
 

If you decide to have a medical POA and/or a durable POA, you will know you have taken steps to be sure your wishes are followed when you can’t advocate for yourself. 
 

Having the proper POA documents drawn up by a legal professional will give you peace of mind and ensure your legal bases are covered.
 

Post a job on UpCounsel to find a lawyer to help with POA services. UpCounsel’s lawyers have an average of 14 years of experience and have worked for companies like Google, Menlo Ventures, and Airbnb.


 

Frequently Asked Questions: POAs

How to get a medical power of attorney?

If you want a medical POA, you must fill out a legal form specifying who you want as your agent, usually notarized or witnessed by two individuals. You will also need to clearly define the decisions you want your POA to be able to make on your behalf. 

 

Your attorney can suggest or draft a document to meet your state’s laws. 

 

Can a power of attorney look at medical records?

According to the U.S. Department of Health and Human Services:

 

“Yes, an individual that has been given a health care power of attorney will have the right to access the medical records of the individual related to such representation to the extent permitted by the HIPAA Privacy Rule at 45 CFR 164.524.
 

They add that if the physician or other covered entity reasonably believes an individual, such as an unemancipated minor, has been a victim of domestic violence, abuse, or neglect by the personal representative, they may use their professional judgment. 
 

If treating a person as the individual’s personal representative could endanger the individual, the physician or covered entity may refuse to recognize that person as the representative. 
 

This decision can be made if professional judgment indicates that doing so would not be in the individual’s best interests.