By Ilya Lyubimskiy, JD, CPA | Estate Planning & Probate Attorney and Author of I Wish I Talked to You Sooner
TIf you were unconscious in a hospital tomorrow, who would you want speaking with your doctors?
Most people can answer that question pretty quickly.
But there is a second question that matters just as much:
Have you actually given that person the legal authority to speak for you?
A healthcare power of attorney (also called a medical power of attorney) allows you to name someone to make healthcare decisions if you are unable to make or communicate those decisions yourself.
In Colorado, a medical durable power of attorney is expressly recognized as an advance healthcare directive, and the person appointed under it can serve as an authorized decision-maker when the patient lacks decisional capacity.
As an estate planning attorney, I think this document is sometimes misunderstood because people associate it entirely with death or life support.
Its purpose is much broader.
A medical power of attorney is really about making sure someone you trust can advocate for you while you are alive.
What Can a Healthcare Agent Actually Do?
Depending on the document and applicable law, your healthcare agent may be called upon to communicate with physicians, understand diagnoses, evaluate treatment options, authorize medical care, coordinate services, and make other healthcare decisions when you cannot do so yourself.
That could happen after a serious car accident.
During recovery from surgery.
After a stroke.
During an unexpected illness.
Or because cognitive decline has made it difficult to understand or communicate medical decisions.
The book makes an important distinction: a medical power of attorney is not simply an “end-of-life form.” It is designed to give someone you trust the ability to participate in your care when you cannot advocate for yourself.
Your Healthcare Agent Does Not Have to Be Your Financial Agent
People often name the same person for every role in an estate plan.
Sometimes that makes perfect sense.
But it is not required.
The qualities that make someone good at handling finances are not necessarily the same qualities that make someone a strong healthcare agent.
Your financial agent may need to be organized, careful with money, and comfortable dealing with banks and investment accounts.
Your healthcare agent may need something different.
They may need to remain calm while doctors explain complicated information.
They may need to ask difficult questions.
They may need to make decisions quickly.
They may need to advocate for you when other family members disagree.
And they may have to make emotionally difficult decisions based on your values rather than their own.
That is a very different job.
Choose Someone Who Can Handle the Pressure
When choosing a healthcare agent, ask yourself more than just “Who am I closest to?”
Instead, consider:
- Will this person remain calm during a crisis?
- Can they understand complicated information and ask questions?
- Will they advocate for me?
- Can they make a difficult decision when necessary?
- Will they respect my wishes even if they personally disagree?
- Can they communicate with other members of my family?
- Are they realistically available when I may need them?
The book emphasizes that healthcare decision-making often unfolds through a series of conversations over hours, days, or even weeks. Your agent may be communicating with physicians, specialists, nurses, family members, and other members of a care team while circumstances continue to change.
Not everyone is comfortable doing that.
And that is okay.
You are not deciding who loves you the most.
You are deciding who is best suited for the job.
Distance Is an Important Consideration
Suppose the person you trust most lives 1,500 miles away.
Can you still name them?
Potentially, yes.
But think about the practical side.
Financial matters can often be handled remotely. Healthcare decisions sometimes require much more active participation.
Your agent may need to respond quickly to calls, participate in meetings with physicians, visit you in the hospital, coordinate with different care teams, or stay involved for an extended period.
Distance does not automatically make someone a bad choice.
But availability matters.
If your first choice lives far away, consider whether that person can realistically step into the role.
Naming Someone Is Only Half the Job
Imagine I tell you:
“If something happens to me, you’re responsible for making my medical decisions.”
Then I refuse to tell you anything about what I actually want.
Not very helpful.
Naming a healthcare agent gives someone authority.
Talking with that person gives them direction.
You do not have to anticipate every possible diagnosis or medical procedure. No document or conversation could realistically cover every situation.
But your agent should understand your general values.
What does quality of life mean to you?
How aggressive would you want treatment to be if recovery were uncertain?
What risks would you accept for a meaningful chance at recovery?
How important is independence to you?
Are there religious, personal, or cultural beliefs that should guide your care?
These conversations can feel uncomfortable.
But having them while you are healthy can spare the person you choose from having to guess during a crisis.
What Is the Difference Between a Medical Power of Attorney and a Living Will?
These documents are related, but they do different things.
A medical power of attorney names a person who can make healthcare decisions when you cannot.
A living will provides written instructions concerning certain serious medical circumstances, particularly decisions involving life-sustaining treatment and end-of-life care.
An easy way to remember the distinction is:
The medical power of attorney answers “who?”
The living will helps answer “what?”
Ideally, they work together.
Your healthcare agent provides judgment when real-life circumstances cannot be predicted in advance, while your written instructions give that person guidance about your wishes.
The book likewise treats the healthcare power of attorney and living will as complementary documents rather than substitutes for one another.
What About Access to Medical Information?
A person making healthcare decisions needs information.
That means your planning should also consider access to medical records and conversations with healthcare providers.
The Health Insurance Portability and Accountability Act (HIPAA) protects private health information. Estate plans often include appropriate HIPAA authorization so the people who need medical information can obtain it without unnecessary confusion.
This is another example of why the pieces of an estate plan should work together.
Giving someone responsibility without giving them the information necessary to carry it out can create an avoidable obstacle.
Always Think About a Backup
You should also consider what happens if your first-choice agent cannot serve.
Maybe that person is traveling.
Maybe they become ill themselves.
Maybe your relationship changes.
Maybe they simply decide, when faced with the situation, that they cannot handle the responsibility.
Life happens.
Naming a successor healthcare agent gives your plan a second line of defense.
A backup is particularly important because healthcare decisions can be time-sensitive. You do not want the plan to stall because the only person you named cannot be reached.
Tell the Person You Chose
Please do not make this a surprise.
You do not want someone learning in a hospital hallway that they have been named to make major medical decisions for you.
Talk with them beforehand.
Ask whether they are willing to serve.
Explain what matters to you.
Tell them where the document can be found.
And make sure they understand that their role is to advocate for your wishes, not simply make the decisions they would make for themselves.
One conversation now can make an extraordinarily difficult conversation later much easier.
Your Voice Matters Most When You Cannot Use It
A good medical power of attorney does something very simple but very important.
It lets you decide who speaks when you cannot.
Without planning, state law may have to provide another process for identifying who can make healthcare decisions. With planning, you have the opportunity to choose that person yourself.
Makingdecisions while they are still yours to make is what estate planning is about.
In I Wish I Talked to You Sooner: How to Avoid the Worst Estate Planning Mistakes, I describe the healthcare agent as your voice when you cannot speak for yourself.
I think that is the best way to understand this document.
It is not about expecting something terrible to happen.
It is about making sure that if something unexpected does happen, the person standing beside your hospital bed knows two things:
They have the authority to speak. They know what you would want them to say.
Learn more about I Wish I Talked to You Sooner and how to avoid the estate planning mistakes families too often discover when it is already too late.
About the Author
Ilya Lyubimskiy, JD, CPA, is a Colorado estate planning and probate attorney, Certified Public Accountant, and founder of Premier Legacy Law. He is the author of I Wish I Talked to You Sooner: How to Avoid the Worst Estate Planning Mistakes. Through his legal practice, he helps individuals and families navigate estate planning, probate, and trust administration with an emphasis on practical planning and avoiding preventable problems.
