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Power of Attorney vs. Advance Directive: Which Documents an Aging Parent Needs
A power of attorney covers money. An advance directive covers medical decisions. Here is what each one does, when it takes effect, and what it's called in your parent's state.
By naveen · Updated · How we research our guides
What to know
- A durable power of attorney lets someone your parent names handle money and property; an advance directive names who makes medical decisions and records what treatment your parent would want.
- They're separate documents with separate jobs, so having one leaves the other job undone.
- A medical power of attorney (or health care proxy) is the part of an advance directive that names a person; it doesn't give authority over money.
- Without a power of attorney, family may have to ask a court for authority (CFPB); without an advance directive, state law decides who makes medical decisions (NIA).
- Retirement Checklist puts both documents in order with the HIPAA authorization and everything else your family needs.
A power of attorney vs. an advance directive comes down to money vs. medicine. A durable power of attorney lets the person your parent names act for them in financial matters: paying bills, dealing with banks and benefits. An advance directive covers health care: it names who makes medical decisions if your parent can't, and records what treatment they would want. Each document leaves the other's territory untouched.
What's the difference between a power of attorney and an advance directive?
A power of attorney covers money and property; an advance directive covers medical decisions and treatment wishes.
| Durable power of attorney | Advance directive | |
|---|---|---|
| Covers | Money, property, bills, benefits | Medical decisions and treatment wishes |
| Names | An agent (also called an attorney-in-fact) | A health care agent, proxy or surrogate |
| Records wishes? | No | Yes, in the living will part |
| Takes effect | When the document says: on signing, or on incapacity in states that allow it | In California, New York and Texas, when a doctor determines your parent can't decide |
| Without one | Family may need a court-appointed guardian or conservator | State law decides who makes medical decisions |
The Consumer Financial Protection Bureau describes a power of attorney as "a legal document that allows someone else to act on your behalf," and explains that a durable one used for advance planning "continues to be effective even if you become incapacitated." The National Institute on Aging says "The two most common advance directives for health care are the living will and the durable power of attorney for health care."
For the full picture of each, see our guides to power of attorney for an elderly parent and to advance directives, living wills and medical power of attorney.
Is a medical power of attorney the same as a power of attorney?
No. A medical power of attorney names someone to make health care decisions; a financial power of attorney names someone to handle money. They share a name and nothing else.
Some states put the separation in writing. The Texas Statutory Durable Power of Attorney form says on its face that it "does not authorize anyone to make medical and other health-care decisions for you." New York's Attorney General says the reverse about the state's health care proxy: it "does not give your agent the power to make non-health care decisions for you, such as financial decisions." So in New York, money needs its own power of attorney.
Does an aging parent need both?
That's your parent's decision, and the considerations are concrete. Without a power of attorney, the CFPB notes, "a friend or family member might have to go to court to have a guardian appointed if you become incapacitated," a process it describes as lengthy, expensive and public. Without an advance directive, the National Institute on Aging says, "the state laws where you live will determine who may make medical decisions on your behalf."
Because they cover different ground, it can help to ask whether each job has someone named to do it, rather than which document to choose. See conservatorship and guardianship for what the court route involves.
When does each one take effect?
A power of attorney takes effect when the document says, within state limits; a health care agent's authority starts, in California, New York and Texas, when a doctor determines your parent can't decide.
- Power of attorney. It takes effect when the document says it does. California's statute recognizes a power of attorney that says "This power of attorney shall become effective upon the incapacity of the principal" (Probate Code §4124), and the Texas statutory form offers a choice between taking effect on signing and "This power of attorney becomes effective upon my disability or incapacity." Florida is stricter: a power of attorney signed today "is exercisable when executed," and one that says it starts later is ineffective, with narrow exceptions (Florida Statutes §709.2108).
- Health care agent. In California, the agent's authority "becomes effective only on a determination that the principal lacks capacity," unless the document says otherwise (Probate Code §4682). In New York, the Attorney General says the agent "would begin to make health care decisions after your doctor decides that you are not able to make your own health care decisions." In Texas, the agent acts only if the attending physician "certifies in writing" that your parent is incompetent (Health and Safety Code §166.152).
Until then, your parent makes their own decisions; New York's Attorney General puts it as "As long as you are able to make health care decisions for yourself, you will have the right to do so." If you need to talk with their doctors sooner, that's a HIPAA authorization. The National Institute on Aging notes that giving a doctor permission to talk with a caregiver "is different from naming a health care proxy."
What are these documents called in each state?
Each state uses its own names, listed below from our state guides, which are built from each state's statutes. The signing rules change across state lines too:
Whether each needs a notary, witnesses or both is covered in does a power of attorney need to be notarized.
Where do a will and a trust fit?
A will covers what happens after death: the National Institute on Aging says it "specifies how your estate" will be distributed "when you die." A revocable living trust can also cover a period of incapacity, but the CFPB notes a trustee has no "legal authority over any money or property that's not in the trust." Neither names someone to make medical decisions. See will vs. living trust.
What questions are worth asking?
- Does your parent have a financial power of attorney, a health care document, both, or neither?
- If they exist, how old are they, and were they signed in the state where your parent lives now?
- Who is named in each, and do those people know?
- Does the power of attorney take effect now or only on incapacity?
- Do your parent's doctors and banks have copies?
For anything complicated, it helps to know what an elder law attorney does.
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Frequently asked questions
What is the difference between a power of attorney and an advance directive?
A durable power of attorney names someone to manage your parent's money and property. An advance directive names someone to make medical decisions and records your parent's treatment wishes. They're separate documents with separate jobs, so a power of attorney doesn't cover health care and an advance directive doesn't cover finances.
Is a medical power of attorney the same as a power of attorney?
No. A medical power of attorney, sometimes called a health care proxy, names someone to make health care decisions. A financial power of attorney names someone to handle money. Texas's statutory financial form says it doesn't authorize health care decisions, and New York's Attorney General says its health care proxy form doesn't cover financial decisions.
Which should my parent sign first?
Both depend on your parent signing while they can: New York's Attorney General says "All competent adults" can appoint a health care agent, and Alzheimers.gov says financial documents need "legal capacity." That's a reason to handle them together. An elder law attorney in your parent's state can prepare both, along with a HIPAA authorization.
What happens if my parent has neither?
For money, family may have to ask a court to appoint a guardian or conservator, a process the Consumer Financial Protection Bureau describes as lengthy, expensive and public. For medical decisions, state law decides who can speak for your parent; the National Institute on Aging says this is typically a spouse, parents or adult children.
Does a power of attorney let me see my parent's medical records?
Not by itself. A financial power of attorney covers money. Access to medical information comes from a HIPAA authorization your parent signs, and medical decision-making comes from a health care proxy or medical power of attorney, which in California, New York and Texas starts once a doctor determines your parent can't decide.
Getting started
These documents only work if your parent signs them while they can. 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.
Sources
- Consumer Financial Protection Bureau, What is a power of attorney (POA)?: What a power of attorney is, what durable means, and the court route without one.
- National Institute on Aging, Advance Directives for Health Care: Living wills, health care proxies, and what happens without a directive.
- Texas Estates Code chapter 752, Statutory Durable Power of Attorney: The form's statement that it doesn't cover health care decisions.
- National Institute on Aging, Getting Your Affairs in Order Checklist: What a will does, and why permission to talk with doctors differs from naming a proxy.
- Consumer Financial Protection Bureau, What is a revocable living trust?: A trustee's authority covers only property in the trust.
- Alzheimers.gov, Planning after a diagnosis: Financial documents need legal capacity.
- New York State Attorney General, Health Care Proxy: Who can sign a New York health care proxy, what it covers, and when the agent begins to decide.
- California Probate Code §4682: When a health care agent's authority takes effect in California.
- California Probate Code §4124: Wording that makes a California power of attorney durable or start on incapacity.
- Florida Statutes §709.2108: When a Florida power of attorney is effective.
- Texas Health and Safety Code chapter 166: When a Texas medical power of attorney agent can act.
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