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Medical Power of Attorney in D.C.: Durable Power of Attorney for Health Care and Living Will
D.C.'s medical power of attorney needs two adult witnesses, at least one of them unrelated, and the sections we read don't require a notary. Here is how it works, along with the District's living will declaration.
By naveen · Updated · How we research our guides
What to know
- A D.C. durable power of attorney for health care must be dated and signed by your parent and two adult witnesses; the witnesses can't include your parent's health care provider or the provider's employee (D.C. Code § 21-2205).
- At least one witness can't be related to your parent by blood, marriage or adoption, or entitled to part of their estate.
- The agent's authority starts when two professionals, a physician and a qualified psychologist or psychiatrist, certify that your parent lacks capacity to make health care decisions (§ 21-2204).
- Without one, D.C. law sets a priority list for substituted consent, starting with a guardian, then the spouse or domestic partner, then an adult child (§ 21-2210).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A medical power of attorney in D.C., called a durable power of attorney for health care, names an agent for health care decisions and must be dated and signed by your parent and two adult witnesses. Under D.C. Code § 21-2205, "A competent adult may designate, in writing, an individual who shall be empowered to make health-care decisions" if they later can't make or communicate a choice. The document "shall be dated and signed by the principal and 2 adult witnesses who affirm that the principal was of sound mind and free from duress at the time of signing."
What is a durable power of attorney for health care in D.C.?
It's a written document, under the District's Health-Care Decisions Act of 1988 (D.C. Code §§ 21-2201 to 21-2213), that names an agent to make health care decisions if your parent becomes incapacitated. It "is effective upon, and only during incapacitation and is unaffected by the subsequent disability or incapacity of the principal." The person your parent names is called the attorney in fact.
Subject to any limits your parent writes in, the agent has "all the rights, powers and authority related to health-care decisions that the principal would have," including the authority to consent to or refuse any treatment, "The right to review the health care records of the principal," and "The authority to select and discharge health-care professionals." It's separate from a financial power of attorney, whose statutory form excludes health care; see our D.C. 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, while a declaration (living will) states your parent's own direction to withhold or withdraw life-sustaining procedures in a terminal condition.
| Document | What it does | Signing rule |
|---|---|---|
| Durable power of attorney for health care | Names an agent to make health care decisions when your parent is certified incapacitated | Dated, signed by your parent and two adult witnesses (D.C. Code § 21-2205) |
| Declaration (living will) | Directs that life-sustaining procedures be withheld or withdrawn in a terminal condition | Dated, signed in the presence of two or more adult witnesses (D.C. Code § 7-622) |
The declaration comes from a separate law, the Natural Death Act of 1981, and its witness rules are stricter. For the general picture, see power of attorney vs. advance directive.
How do you sign a durable power of attorney for health care?
Your parent dates and signs it, and two adult witnesses sign, affirming your parent was of sound mind and free from duress. The witnesses can't include your parent, "the health-care provider of the principal or an employee of the health-care provider of the principal." At least one of the two "shall not be related to the principal by blood, marriage or adoption and shall not be entitled to any part of the estate of the principal by a current will or operation of law."
The document must also show that your parent intends the agent to make health care decisions, with wording identical or similar to "This power of attorney shall not be affected by the subsequent incapacity of the principal" or "This power of attorney becomes effective upon the incapacity of the principal." The Health-Care Decisions Act sections we read don't require a notary, and the statute's sample form has witness lines and no notary block.
Who can't be the health care agent?
The sections we read contain one rule on who can't be the agent, and it concerns health care providers. A health care provider may ask a patient who has spent at least 48 hours in a facility to sign one, but "The health care provider may not be named as the attorney in fact." No provider can require a durable power of attorney for health care as a condition of treatment or admission.
The sample form goes further on witnesses: each witness declares, "I am not the person appointed as the attorney in fact by this document," so using it means the agent shouldn't witness. Nothing in the sections we read bars a family member from serving as the agent, though at least one witness must be unrelated.
When does the agent start making decisions?
Not while your parent can decide. "An individual shall be presumed capable of making health-care decisions unless certified otherwise," and the agent has no authority over a decision your parent can still give or withhold consent to.
Under § 21-2204, incapacity "shall be certified by 2 professionals who are licensed to practice in the District," one a physician and one "a qualified psychologist or psychiatrist," and at least one must examine your parent within a day before certifying. The certification covers health care decisions only. Once it's made, the agent follows your parent's wishes as written, or if those are unknown, a good-faith belief about their best interests, and has priority over anyone else to act.
Where do you get a D.C. form?
D.C. doesn't mandate one. "Any written form meeting the requirements of § 21-2205 may be used," and the statute prints a sample, titled "POWER OF ATTORNEY FOR HEALTH CARE," in § 21-2207. It lets your parent name an agent and two alternates and write directions about life-prolonging care. Its notice tells your parent: "YOU MAY STATE IN THIS DOCUMENT ANY TYPE OF TREATMENT THAT YOU DO NOT DESIRE AND ANY THAT YOU WANT TO MAKE SURE YOU RECEIVE."
The sample also advises giving a copy to the agent and, in a health care facility, putting one in the medical record. The declaration's form is printed in D.C. Code § 7-622.
How do you sign a D.C. living will?
Your parent signs and dates a written declaration in front of two or more adult witnesses, none of whom can be on D.C.'s list of excluded witnesses.
Under D.C. Code § 7-622, anyone 18 or older can sign a declaration directing that life-sustaining procedures be withheld or withdrawn in a terminal condition. It must be in writing, signed by your parent or by someone in their presence at their express direction, dated, and "Signed in the presence of 2 or more witnesses at least 18 years of age."
None of these people can be a witness:
- the person who signed for your parent;
- anyone related to your parent by blood, marriage or domestic partnership;
- anyone entitled to part of your parent's estate by intestate succession or under their will;
- anyone directly financially responsible for your parent's medical care;
- the attending physician, the physician's employee, or an employee of the health facility where your parent is a patient.
If your parent lives in an intermediate care or skilled care facility when signing, the declaration "shall have no effect" unless one witness is a patient advocate or ombudsman. It applies once two physicians, one of them the attending physician, certify a terminal condition in writing. "The desires of a qualified patient shall at all times supersede the effect of the declaration."
What happens if your parent has no medical power of attorney?
Family members and others can consent for your parent in a set order of priority, which D.C. calls substituted consent. Under § 21-2210, once incapacity is certified under § 21-2204, these people can consent to or refuse treatment, in order of priority:
- a court-appointed guardian or conservator, within the scope of the appointment;
- the spouse or domestic partner;
- an adult child;
- a parent;
- an adult sibling;
- a religious superior, if your parent is a member of a religious order or a diocesan priest;
- a close friend;
- the nearest living relative.
The list also includes a court-appointed intellectual disability advocate after the guardian. Decisions follow your parent's known wishes, otherwise their best interests, and "There shall be at least 1 witness present" when a family member or friend makes one. The order is a rebuttable presumption: someone lower on the list who knows your parent's wishes better can challenge a decision in Superior Court. If no one is available, a provider or interested person may petition for a guardian; see conservatorship and guardianship.
How do you revoke a D.C. advance directive?
Your parent can revoke a health care power of attorney by notifying the agent or the health care provider, orally or in writing, and can revoke a declaration by destroying it or by a written or spoken revocation.
- Durable power of attorney for health care. While your parent has the capacity to make one, they can revoke it "by notifying the attorney in fact orally or in writing," or revoke the agent's authority by notifying the health care provider orally or in writing (§ 21-2208). A new one revokes earlier ones unless it says otherwise. Ending a marriage or domestic partnership automatically revokes a former spouse's or partner's appointment, unless the document says otherwise.
- Declaration. It can be revoked "without regard to the declarant's mental state" by destroying it, by a signed and dated written revocation, or by a spoken revocation before an adult witness who signs and dates a confirming note; written and spoken revocations take effect when communicated to the attending physician (§ 7-624).
What about MOST?
A MOST form, Medical Orders for Scope of Treatment, is a set of portable medical orders on a form issued by the D.C. Department of Health, for a patient with a life expectancy of 12 months or less. Only the patient's treating physician or advanced practice nurse can complete it, and the patient or their authorized representative signs it. According to DC Health, "Any incomplete section of the MOST form implies full treatment for that section." No one can be required to complete one.
Frequently asked questions
Does a medical power of attorney need to be notarized in D.C.?
Not under the Health-Care Decisions Act sections we read, which don't require a notary. Under D.C. Code § 21-2205, a durable power of attorney for health care must be dated and signed by your parent and two adult witnesses who affirm your parent was of sound mind and free from duress. The statute's sample form has no notary block.
Can a family member witness a medical power of attorney in D.C.?
One can. At least one of the two witnesses must be unrelated to your parent by blood, marriage or adoption and not entitled to any of their estate. Neither witness can be your parent's health care provider or the provider's employee, and the sample form has witnesses declare they aren't the agent.
Where can I get a D.C. medical power of attorney form?
D.C. doesn't require a particular form. Any written document meeting the signing rules in D.C. Code § 21-2205 works, and the statute prints a sample form in § 21-2207 on the D.C. Council's code website. The declaration, or living will, has its own statutory form in § 7-622.
Who makes medical decisions in D.C. if there's no medical power of attorney?
After two professionals certify incapacity, D.C. Code § 21-2210 sets a priority list: a guardian or conservator, then the spouse or domestic partner, an adult child, a parent, an adult sibling, a religious superior for members of religious orders, a close friend, and the nearest living relative. A witness must be present for their decisions.
Is a medical power of attorney from another state valid in D.C.?
Yes, if it was validly executed under similar law: D.C.'s definition covers a document "validly executed in another jurisdiction pursuant to similar provisions of the law of that jurisdiction." The Natural Death Act sections we read don't address out-of-state living wills. If your parent splits time between places, an attorney can confirm what covers both.
Can my parent change their mind after signing?
Yes. While they have capacity, your parent can revoke the appointment by telling the agent or the health care provider, orally or in writing. A declaration can be revoked regardless of mental state. And the agent can't decide anything your parent is still able to consent to or refuse.
Getting started
A durable power of attorney for health care only helps if it's signed while your parent can sign it, with two adult witnesses who meet D.C.'s rules, and if copies reach the agent and 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
- D.C. Code Title 21, Chapter 22, Health-Care Decisions: definitions (§ 21-2202), certification of incapacity (§ 21-2204), signing (§ 21-2205), the agent (§ 21-2206), the sample form (§ 21-2207), revocation (§ 21-2208), provider limits (§ 21-2209), substituted consent (§ 21-2210) and MOST (§§ 21-2221.01 to 21-2221.15); published by the Council of the District of Columbia.
- D.C. Code Title 7, Chapter 6, Natural Death: the declaration, its witnesses and form (§§ 7-621 to 7-623) and revocation (§ 7-624).
- DC Health, Medical Orders for Scope of Treatment Program: the MOST form.
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