Healthcare Power of Attorney, Living Will, and HIPAA Authorization: Three Different Jobs

Estate-planning documents often use similar healthcare terminology, but a Healthcare Power of Attorney, Living Will, and HIPAA Authorization do not do the same thing.

Each has a different purpose:

• A Healthcare Power of Attorney names a person to make healthcare decisions for you when you cannot make or communicate those decisions yourself.

• A Living Will gives instructions about the medical treatment you would or would not want in specified circumstances.

• A HIPAA Authorization allows designated people to receive protected medical information.

These documents often work together, but one does not automatically replace the others.

Understanding the distinction can help you complete your healthcare planning more deliberately.

The Three Documents at a Glance

A simple way to remember the difference is:

Healthcare Power of Attorney = Who decides?

Living Will = What do I want?

HIPAA Authorization = Who can get the information?

What Is a Healthcare Power of Attorney?

A Healthcare Power of Attorney is a legal document in which you appoint another person to act as your healthcare agent.

Depending on the state, that person may also be called your:

• Healthcare proxy

• Healthcare representative

• Healthcare surrogate

• Medical agent

• Attorney-in-fact for healthcare

The terminology varies, but the basic function is the same.

Your healthcare agent can make medical decisions for you when the authority granted by the document becomes effective and you are unable to make or communicate those decisions yourself.

The National Institute on Aging describes a healthcare power of attorney as an advance directive that names a person to make healthcare decisions when you cannot communicate them yourself. (National Institute on Aging)

What Kinds of Decisions Can a Healthcare Agent Make?

The exact authority depends on the document and state law, but a healthcare agent may be authorized to make decisions involving matters such as:

• Medical treatment

• Surgery

• Medications

• Hospitalization

• Rehabilitation

• Nursing care

• Physicians and healthcare providers

• Diagnostic procedures

• Pain management

• Life-sustaining treatment

• Artificial nutrition and hydration

• Placement in certain healthcare facilities

• Other medical decisions permitted by state law

The agent's authority may be broad or limited.

That is one reason the person you select matters.

When Does the Healthcare Agent Take Over?

Generally, you continue making your own healthcare decisions as long as you are capable of doing so.

The Healthcare Power of Attorney is designed primarily for situations in which you cannot make or communicate your own medical decisions.

For example, you might be unable to act because of:

• Unconsciousness

• Serious injury

• Stroke

• Advanced dementia

• Severe illness

• Sedation or other temporary incapacity

The precise standard for determining incapacity and when an agent's authority begins varies by state and by document.

A Healthcare Power of Attorney does not ordinarily give someone permission to override a capable patient's own healthcare decisions.

Why Choose an Agent If You Already Have a Living Will?

Because a Living Will cannot anticipate every medical situation.

A Living Will gives instructions about specified treatment decisions, but medicine is rarely limited to simple yes-or-no scenarios.

Your healthcare agent can respond to circumstances you never predicted.

For example, your Living Will might address life-sustaining treatment when recovery is no longer reasonably expected.

But what if you suffer a serious stroke and doctors offer several treatment alternatives with different risks and likely outcomes?

A Healthcare Power of Attorney gives a trusted person authority to participate in those decisions.

That flexibility is one of the principal reasons healthcare planning commonly includes both a Living Will and a Healthcare Power of Attorney.

What Is a Living Will?

A Living Will is a written advance directive describing your wishes regarding medical treatment if you later become unable to make or communicate those decisions yourself.

It is sometimes confused with a Last Will and Testament, but the two documents serve completely different purposes.

A Last Will and Testament governs property and estate administration after death.

A Living Will concerns healthcare decisions while you are still alive.

The National Institute on Aging describes a Living Will as a document telling healthcare providers how you want to be treated if you cannot make your own decisions about medical care. (National Institute on Aging)

What Does a Living Will Usually Address?

The precise subjects depend on state law and the particular form, but a Living Will may address matters such as:

• Life-sustaining treatment

• Mechanical ventilation

• Artificial nutrition

• Artificial hydration

• Cardiopulmonary resuscitation

• Dialysis

• Certain surgical procedures

• Pain relief and comfort care

• Treatment when death is imminent

• Treatment when a person is permanently unconscious

• Other end-of-life decisions

Not every Living Will addresses all of these issues.

Some states use very specific statutory terminology or require the document to address particular medical conditions before certain instructions become effective.

A Living Will Gives Instructions Rather Than Appointing a Person

This is an important distinction.

Suppose your Living Will says you do not want life-prolonging treatment under specified circumstances.

That provides guidance regarding what treatment you want.

But it does not necessarily answer every question the medical team may face.

Your Healthcare Power of Attorney answers the separate question of who may speak and decide for you.

Ideally, the two documents work together.

Your Living Will expresses your wishes.

Your healthcare agent applies those wishes to the real-world medical circumstances.

What Happens If the Agent and Living Will Conflict?

Ideally, that situation never occurs.

Your healthcare agent should understand your values and should receive a copy of your Living Will.

The agent's role is generally to make decisions consistent with your known wishes rather than substitute the agent's personal preferences.

State law determines how written healthcare instructions interact with an agent's authority.

That is one reason the Healthcare Power of Attorney and Living Will should be prepared as parts of the same overall plan rather than as unrelated documents.

What Is a HIPAA Authorization?

A HIPAA Authorization serves a third purpose.

HIPAA refers to the federal Health Insurance Portability and Accountability Act and its privacy rules governing protected health information.

A HIPAA Authorization allows healthcare providers and other covered entities to disclose specified protected health information to designated people.

In practical terms, the form can help answer:

Who may receive my medical information?

Under the HIPAA Privacy Rule, written authorizations can permit disclosures of protected health information that would not otherwise be permitted or required. HHS explains that valid authorizations must contain specified information concerning the records, the persons permitted to disclose and receive them, expiration, and other required elements. (HHS.gov)

A HIPAA Authorization Does Not Give Someone Authority to Make Medical Decisions

This is perhaps the most important distinction involving HIPAA forms.

Suppose you authorize your adult daughter to obtain information about your medical condition.

That can allow her to communicate with healthcare providers and obtain information within the scope of the authorization.

But that authorization alone does not necessarily give her authority to decide whether you should:

• Have surgery

• Receive a particular medication

• Be placed on a ventilator

• Enter a nursing facility

• Stop life-sustaining treatment

Those are healthcare decision-making powers.

They ordinarily come from a Healthcare Power of Attorney or other authority recognized under state law—not merely from a HIPAA Authorization.

Healthcare Decision-Making Authority Can Carry HIPAA Rights

The relationship also works in the other direction.

Under HIPAA, a person who has legal authority under applicable law to make healthcare decisions for another person may qualify as that person's personal representative.

HHS generally requires covered providers to treat an authorized personal representative as the patient for HIPAA purposes to the extent relevant to that representative's authority. (HHS.gov)

For example, a healthcare agent who is presently authorized to make broad healthcare decisions may have rights to obtain medical information needed to make those decisions.

But the scope of that access can depend on:

• Whether the Healthcare Power of Attorney is currently effective

• The scope of the agent's authority

• State law

• The medical information involved

• HIPAA's exceptions

That is one reason some estate plans include a separate HIPAA Authorization in addition to the Healthcare Power of Attorney.

Why Have a Separate HIPAA Authorization?

A separate HIPAA Authorization can provide useful flexibility.

For example, you might want your spouse to be your healthcare agent but also want your adult children to be able to discuss your condition with your doctors.

Those are different roles.

You might appoint:

Spouse: Healthcare agent with authority to make decisions.

Spouse and adult children: Persons authorized to receive medical information.

The HIPAA Authorization can therefore include people who are not healthcare decision-makers.

Example: A Hospital Emergency

Consider this situation.

John is unconscious after a serious automobile accident.

He has three documents.

Healthcare Power of Attorney

John named his wife, Susan, as his healthcare agent.

Susan may be authorized to make healthcare decisions for John once the applicable requirements for incapacity have been met.

Living Will

John's Living Will provides instructions concerning life-sustaining treatment under certain serious or terminal medical circumstances.

Susan and the physicians can use those written instructions when making decisions within their scope.

HIPAA Authorization

John also authorized Susan and his two adult children to receive medical information.

The children can stay informed and communicate with the medical team to the extent permitted by the authorization, even though Susan remains the person with healthcare decision-making authority.

The three documents are performing three different jobs.

Another Example: Aging Parent and Adult Children

Suppose Mary has three adult children.

She chooses her oldest daughter as her healthcare agent because that daughter lives nearby and is comfortable dealing with medical decisions.

Mary wants all three children to be able to receive information about her health.

Her documents could therefore provide:

Healthcare Power of Attorney: Oldest daughter is the primary agent.

Living Will: Mary's instructions regarding life-sustaining treatment and end-of-life care.

HIPAA Authorization: All three children may receive specified medical information.

There is no requirement that every person with access to medical information also have authority to make healthcare decisions.

Should the Same Person Be Your Healthcare Agent and HIPAA Recipient?

Often, yes.

The person making medical decisions needs enough information to make informed decisions.

But HIPAA access can be broader.

You may want additional family members or trusted people to receive medical information without giving each of them authority to make decisions.

That distinction can reduce confusion.

Too many healthcare decision-makers can create conflict.

Allowing several people to receive information does not require appointing several people to act simultaneously as your agents.

Should You Name More Than One Healthcare Agent?

Many Healthcare Powers of Attorney allow you to name:

• A primary agent

• One or more successor agents

A successor acts if the primary agent cannot or will not serve.

Naming successors can be important because your first choice may be unavailable when needed.

Appointing two or more people to serve simultaneously is different.

Co-agents can sometimes create practical problems if they disagree or if healthcare providers cannot quickly determine who has authority.

Whether co-agents are permitted or advisable depends on the document and state law.

Your Healthcare Agent Should Know Your Wishes

Signing the document is not enough.

Talk to your agent about:

• Your views regarding life-sustaining treatment

• Quality of life

• Pain management

• Religious or personal beliefs affecting care

• Artificial nutrition and hydration

• Organ donation, if applicable

• Where you would prefer to receive care

• What matters most to you if recovery is uncertain

The National Institute on Aging recommends giving the healthcare proxy copies of the healthcare power of attorney, Living Will, and other relevant instructions and continuing to discuss changing preferences over time. (National Institute on Aging)

Common Mistake #1: Assuming a Living Will Names a Decision-Maker

A Living Will generally provides medical instructions.

It does not necessarily appoint the person who will make decisions when situations arise outside those instructions.

That is the function of the Healthcare Power of Attorney.

Common Mistake #2: Assuming a Healthcare Power of Attorney Fully Replaces a Living Will

Your agent can make decisions, but written instructions still provide valuable guidance.

A Living Will tells your agent and healthcare providers what you decided about certain important treatment issues before the crisis occurred.

It can reduce uncertainty and disagreement among family members.

Common Mistake #3: Assuming HIPAA Authorization Means Healthcare Power of Attorney

Permission to receive medical information does not by itself equal authority to make healthcare decisions.

A person may be allowed to know what is happening without being authorized to decide what happens next.

Common Mistake #4: Naming an Agent Without Discussing Your Wishes

The legal authority is important, but the person also needs to understand your preferences.

An agent who does not know whether you would want aggressive treatment, comfort-focused care, or other interventions may still face very difficult decisions.

Common Mistake #5: Giving Copies to No One

Healthcare planning documents need to be available when a medical emergency occurs.

After signing them, consider providing copies to:

• Your healthcare agent

• Successor agents

• Primary physician

• Other relevant healthcare providers

• Trusted family members where appropriate

You should also tell the people involved where the originals or current copies are stored.

Do These Documents Work After Death?

Their principal purposes concern healthcare and privacy during life, but the rules are not identical.

A Healthcare Power of Attorney generally concerns healthcare decisions while you are alive. The agent's medical decision-making authority ordinarily ends at death, subject to any limited authority recognized by state law concerning matters such as disposition or anatomical gifts.

HIPAA privacy protections, however, continue after death. Different rules apply to the deceased person's legally authorized personal representative, such as an executor or administrator. HHS provides that a legally authorized estate representative may have access to protected health information relevant to that role. (HHS.gov)

Do not assume that the same person automatically retains all the same authority after death.

State Law Still Matters

Healthcare directives are governed significantly by state law.

States differ regarding:

• The terminology used

• Witness requirements

• Notarization

• When an agent's authority becomes effective

• How incapacity is determined

• Permitted healthcare instructions

• Life-sustaining treatment provisions

• Pregnancy-related limitations

• Who may act as an agent

• Whether particular forms are statutory

• How conflicting directives are resolved

A document appropriate in one state may require different language or signing procedures in another.

That is why state-specific instructions should be reviewed before signing.

When Should You Review These Documents?

Healthcare documents should be reviewed periodically and after major changes such as:

• Marriage

• Divorce

• Death of an agent

• A move to another state

• Major health changes

• Family conflict

• A change in your treatment preferences

• An agent becoming unable or unwilling to serve

The National Institute on Aging recommends reviewing advance directives periodically and after significant life or health changes. (National Institute on Aging)

The Bottom Line

A Healthcare Power of Attorney, Living Will, and HIPAA Authorization address three separate questions.

Healthcare Power of Attorney:
Who should make medical decisions for me if I cannot?

Living Will:
What medical treatment do I want or not want under specified circumstances?

HIPAA Authorization:
Who should be allowed to receive my protected medical information?

For many people, the strongest healthcare plan uses all three.

The Healthcare Power of Attorney provides a decision-maker.

The Living Will provides instructions.

The HIPAA Authorization makes it easier for the appropriate people to obtain the information they need.

Because healthcare-directive requirements vary by state, review the state-specific guidance provided with your kit before signing. Professional advice may be appropriate when your wishes involve unusual medical instructions, family conflict, religious restrictions, questions about capacity, or uncertainty concerning who should have decision-making authority.

This article provides general educational information and is not legal advice. Laws, legal requirements, and individual circumstances vary. Consult a licensed attorney in the appropriate jurisdiction for advice about a specific situation.