How a Durable Power of Attorney in Healthcare Works
A woman researches how a durable power of attorney works in healthcare.
A woman researches how a durable power of attorney works in healthcare.

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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.