Guides · State guides · Arkansas
Medical Power of Attorney in Arkansas: Health Care Agents, Living Wills and Witnesses
Arkansas's durable power of attorney for health care and its living will each need a notary or two qualified witnesses. Here is how both work under the Arkansas Healthcare Decisions Act, and what happens without them.
By naveen · Updated · How we research our guides
What to know
- An Arkansas medical power of attorney, called a durable power of attorney for health care, must be in writing, signed by your parent, and either notarized or witnessed by two witnesses (A.C.A. 20-6-103).
- A witness can't be the agent, and at least one witness must be someone who isn't related to your parent and wouldn't inherit from them.
- The same signing rule covers a living will, and the Arkansas Department of Health publishes free forms for both.
- Without an agent, a health care provider identifies a surrogate and may follow an order that starts with the spouse, then adult children, parents and siblings (A.C.A. 20-6-105).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A medical power of attorney in Arkansas is "a written advance directive that identifies an agent who is authorized to make healthcare decisions on behalf of the principal." Under the Arkansas Healthcare Decisions Act (A.C.A. 20-6-103, as amended by Act 974 of 2017), "An advance directive, including without limitation a living will or durable power of attorney for health care, shall be either notarized or witnessed by two (2) witnesses."
What is a durable power of attorney for health care in Arkansas?
It's the document your parent uses to name an agent for medical decisions. An adult, married minor or emancipated minor can sign one authorizing "an agent to make a healthcare decision that the principal could make if he or she had capacity." It "shall be in writing and signed by the principal," and it "remains in effect notwithstanding the principal's latest incapacity and may include a living will or other individual instructions."
The agent follows your parent's instructions and known wishes, otherwise their best interest, and has the same right as your parent to see their medical information unless the document says otherwise. It's separate from a financial power of attorney, whose statutory form excludes health care; see our Arkansas power of attorney guide.
How is it different from a living will?
A durable power of attorney for health care names someone to decide for your parent; a living will states your parent's own instructions.
| Document | What it does | Signing rule |
|---|---|---|
| Durable power of attorney for health care | Names an agent to make health care decisions when your parent lacks capacity | Notary, or two qualified witnesses (A.C.A. 20-6-103) |
| Living will | States your parent's instructions for care to be provided or withheld if they later lack decision-making capacity | Notary, or two witnesses (A.C.A. 20-6-103, 20-17-202) |
A living will is "a written advance directive describing the principal's individual instructions for health care to be provided or withheld in the event that the principal subsequently lacks decision-making capacity." It includes a declaration under the Arkansas Rights of the Terminally Ill or Permanently Unconscious Act, whose optional statutory form begins, "If I should have an incurable or irreversible condition that will cause my death within a relatively short time." The two documents can be combined. For the general picture, see power of attorney vs. advance directive.
How do you sign an Arkansas advance directive?
Your parent signs it, then either has it notarized or signs before two witnesses. Under A.C.A. 20-6-103(c), "a witness shall be a competent adult who is not the agent and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and who would not be entitled to any portion of the estate of the principal" under a will or by law. A witnessed document must include a clause in which the witnesses attest that they qualify.
So one witness may be a relative, but the other can't be a relative or an heir, and neither can be the agent. The Department of Health's agent form tells signers: "To be legally valid, either block A or block B must be properly completed and signed," meaning the witness block or the notary block.
Who can serve as the health care agent?
Your parent chooses the agent, and the Healthcare Decisions Act sections we read don't bar any category of person, such as a doctor or a nursing home employee, from being named. The restriction on treating providers and facility staff applies to surrogates chosen when there's no agent (see below).
Divorce matters. "A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in an advance directive." Under this law it's the decree, not the filing, that revokes it.
When does the agent start making decisions?
"Unless otherwise specified in an advance directive, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity" (A.C.A. 20-6-103). A licensed physician makes that determination if necessary and records it in your parent's clinical record.
"A healthcare decision made by an agent for a principal is effective without judicial approval." A guardian appointed later must follow your parent's instructions and "shall not revoke the principal's advance directive" without a court order.
Where do you get Arkansas advance directive forms?
The Arkansas Department of Health publishes the State Board of Health's free forms, adopted under the 2013 act: an Appointment of Health Care Agent form and an Advance Care Plan that names an agent and records treatment choices. The Advance Care Plan says your parent may use "this form or any form of their own choosing," and that "the Advance Care Plan must be signed and either witnessed or notarized."
The form's checklist is practical: "Provide a copy to your physician(s)" and "Provide a copy to the person(s) you named as your health care agent." A document signed before October 1, 2013 that was valid when signed remains valid.
What happens if your parent has no medical power of attorney?
Arkansas uses a surrogate. Your parent can name one by telling the supervising health care provider, orally or in writing. Otherwise, once a licensed physician finds your parent lacks capacity and there's no available agent or guardian, the supervising provider identifies a surrogate under A.C.A. 20-6-105. The surrogate must be an adult who has shown special care and concern for your parent, knows their values, is reasonably available and is willing to serve. The provider "may proceed in order of descending preference" to:
- the spouse, unless legally separated;
- an adult child;
- a parent;
- an adult sibling;
- any other adult relative;
- any other adult who meets the requirements.
The treating provider and facility staff can't be surrogates unless they're relatives. A surrogate your parent didn't choose can stop artificial nutrition and hydration only if a written advance directive authorizes it, or two physicians certify it's "merely prolonging the act of dying" and recovery of capacity is highly unlikely. If no one is available, the provider may decide with an ethics committee or a second physician. See conservatorship and guardianship.
How do you revoke an Arkansas advance directive?
"A principal having capacity may revoke all or part of an advance directive," "including without limitation a living will, durable power of attorney for health care, or other document, at any time and in any manner that communicates an intent to revoke" (A.C.A. 20-6-104). A provider, agent, guardian or surrogate who learns of a revocation must pass it on to the supervising provider and the facility. A newer directive revokes an older one to the extent they conflict.
What about POLST?
A POLST is a physician order, not an advance directive. Arkansas created it by Act 504 of 2017 for "patients with a serious illness or medical frailty when a physician would not be surprised if the patient died within one (1) year." According to the Department of Health's POLST form directions, "No patient is required to complete a POLST form," and "To be valid, a POLST form must be signed by a physician and the patient or legal representative."
Frequently asked questions
Does a medical power of attorney need to be notarized in Arkansas?
Not necessarily. Under A.C.A. 20-6-103, a durable power of attorney for health care must be either notarized or witnessed by two witnesses; either one works. The Department of Health's form offers a witness block and a notary block, and says one of the two must be completed and signed for the document to be legally valid.
Can a family member witness an Arkansas advance directive?
One witness can. Neither witness can be the agent, and at least one must be someone who isn't related to your parent by blood, marriage or adoption and wouldn't inherit from them under a will or by law. Using a notary instead of witnesses avoids the question.
Where can I get an Arkansas medical power of attorney form?
The Arkansas Department of Health publishes a free Appointment of Health Care Agent form and an Advance Care Plan, adopted by the State Board of Health. Your parent can also use any form of their own choosing, as long as it's signed and either notarized or witnessed under A.C.A. 20-6-103. Give copies to the doctor and the agent.
Who makes medical decisions in Arkansas if there's no power of attorney?
A surrogate. Your parent can name one by telling the supervising provider. Otherwise the provider identifies an adult who has shown care for your parent and knows their values, and may proceed in order from the spouse to adult children, parents, adult siblings, other adult relatives and then other qualified adults (A.C.A. 20-6-105).
Is an advance directive from another state valid in Arkansas?
Yes, if it passes either of two tests. Under A.C.A. 20-6-103, as amended in 2017, an advance directive executed outside Arkansas "shall be given effect in this state" if, when signed, it complied with Arkansas's act or with the law of the state where it was signed. If your parent splits time between states, an attorney can confirm what covers both.
Can my parent change their mind after signing?
Yes. While your parent has capacity, they can revoke all or part of an advance directive, including the appointment of an agent, at any time and in any manner that communicates the intent to revoke. Telling the doctor and giving them any new document keeps the medical record current.
Getting started
A medical power of attorney only helps if it's signed while your parent can sign it, before a notary or two qualified witnesses, and if a copy reaches the doctor. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Act 974 of 2017, amending the Arkansas Healthcare Decisions Act: definitions (A.C.A. 20-6-102), signing and witnesses (20-6-103), revocation (20-6-104), surrogates (20-6-105, 20-6-106) and the living will declaration (20-17-202); published by the Arkansas General Assembly.
- Act 1264 of 2013, Arkansas Healthcare Decisions Act: A.C.A. 20-6-101 and following, including access to medical information (20-6-110) and older documents (20-6-116, 20-6-117).
- Act 504 of 2017, Arkansas Physician Order for Life-Sustaining Treatment Act: POLST.
- Arkansas Department of Health, Healthcare Decision Forms: the Appointment of Health Care Agent and Advance Care Plan forms.
- Arkansas Department of Health, POLST form and directions: who signs a POLST.
More on what this tool does and doesn't do, or browse everything we've written.