When you make a durable power of attorney for health care, the most important decision you will face is deciding who your health care agent should be. (In your state, this person may also be called a health care proxy, surrogate, or attorney-in-fact.)
Most people name their spouse, partner, a relative, or a close friend as their health care agent. What's most important is that you trust the person absolutely—and that you feel confident discussing your wishes for medical care with him or her. Your agent need not agree with all of your wishes, but must completely respect your right to get the kind of treatment you want.
The health care agent (also called a health care proxy, surrogate, or representative in some states) is the person you name in your medical power of attorney (POA) to make health care decisions on your behalf if you're ever unable to do so yourself. This agent helps you get the care you want.
To make your choice of health care agent official, you'll need to make a durable power of attorney for health care (also called a medical power of attorney), which gives another person authority to make medical decisions for you if you are unable to speak for yourself. In some states, this document may be called an Appointment of Health Care Proxy, Designation of Health Care Surrogate, or something similar—but it works the same as a durable power of attorney. (For more information, see The Living Will and Power of Attorney for Health Care: An Overview.)
A medical power of attorney is accompanied by another document, often called a "living will," which sets out your wishes for health care should you ever become incapacitated. Many states combine the medical power of attorney and the living will into a single document, often called an advance health care directive.
Is the person assertive? Keep in mind that your agent may have to fight to assert your wishes in the face of a stubborn medical establishment—and against the wishes of family members who may be driven by their own beliefs and interests, rather than yours. If you foresee the possibility of a conflict in enforcing your wishes, be sure to choose an agent who is strong-willed and assertive.
If you want to learn more about the obligation to follow your wishes, read Will Medical Personnel Honor My Health Care Documents?
Does the person live close to you? While you need not name someone who lives in the same city or state as you do, proximity can be critical. If you have a long illness, your agent may be called upon to spend weeks or even months nearby, making sure medical personnel abide by your wishes for health care.
Will the person also be your financial agent? If you make a durable power of attorney for finances to name someone to manage your finances in case you become incapacitated, it's usually wise to name the same person as both your agent for health care and your agent for finances.
If you feel that you must name different people, be sure you name agents who get along well and will be able to work together. You wouldn't, for example, want your agent for finances to interfere with your health care wishes by stalling or resisting payment of medical or insurance bills, two things over which your agent for finances will most likely have control.
Learn more about Financial Powers of Attorney on Nolo.com.
Some states restrict who you can name as your health care agent. These restrictions assume that certain categories of people are inherently unqualified or biased, and therefore should not make healthcare decisions on your behalf. Before you name your agent, learn about the Restrictions on Health Care Agents in your state.
Though you are legally permitted to name more than one person to make health care decisions for you, you should name only one agent when you make your power of attorney for health care. This is true even if you know two or more people who are suitable candidates and who agree to undertake the job together.
There may be problems, brought on by passing time and human nature, with naming two or more people to share the job. In the critical time during which they would be overseeing your wishes and directing your care, they might disagree, rendering them ineffective as lobbyists on your behalf. Feuding agents could even end up settling their dispute in court, further delaying and confusing your care.
If you fear that those close to you may feel hurt if you name someone else to represent you, take some time to talk with them to explain your choice. Or, if there are several people you'd feel comfortable naming, you might even let them decide among themselves who the agent will be. If you approve of their choice, you can accept it—and name the others as alternate agents in case your first choice can't serve.
You are permitted to name one or more alternate agents to represent you if your first choice is unable to take the job for any reason or resigns after your power of attorney for health care takes effect.
It's a good idea to name at least one alternate agent, but you should be as thoughtful about naming your alternates as you are about picking your first choice: Be sure to name people who will represent you well if the need arises.
If you don't know anyone you trust to oversee your medical care, it's not necessary to name an agent. In fact, it's better not to name anyone than to name someone who is not comfortable with the directions you leave—or who is not likely to assert your wishes strongly.
If you don't name an agent, you should still complete a living will (health care declaration), stating any wishes for medical care about which you feel strongly. Even without an agent, medical personnel are required to follow your written wishes for health care—or to find someone who will care for you in the way you have directed if they cannot.
If you do not name a health care agent, also be certain to discuss your wishes for medical care with a doctor or a hospital representative who is likely to be involved in providing that care.
Later, if you become incapacitated, your family members can ask a court to name a guardian or conservator to take care of your financial and medical matters. This process will take more time and expense than naming a health care agent using a power of attorney, but it does ultimately end with someone who has the authority to help you. A court will usually name a spouse or other very close family member to this position, taking into account any evidence of what you would've wanted and what would be in your best interest. For more information, see Conservatorships and Adult Guardianships.
To learn more about health care directives, go to Nolo's Living Wills & Medical Powers of Attorney section.
If you'd like to make your own health care directive, you can use a reputable service such as Nolo's Quicken WillMaker, which helps you make your own estate planning documents, including a will, health care directive, and powers of attorney.