Most people picture estate planning as something you do to protect your money. But some of the most important documents in your estate plan have nothing to do with money at all. A healthcare power of attorney is one of them. It’s a document that protects your right to make your own medical decisions — even when you’re no longer able to speak for yourself.
I’ve had more clients come to me after a family crisis than before one. A parent has a stroke. A spouse is in a car accident. Suddenly a family is gathered in a hospital hallway, disagreeing about treatment, and no one has legal authority to make the call. That situation is entirely preventable. This document prevents it.
What a Healthcare Power of Attorney Does
A healthcare power of attorney — also called a healthcare proxy or medical power of attorney — is a legal document that designates someone to make medical decisions on your behalf if you become unable to make them yourself. The person you designate is called your healthcare agent or healthcare proxy.
This is different from a living will or advance directive, though the two are often confused. A living will records your specific wishes — whether you want to be resuscitated, whether you want a ventilator, what you want done in a terminal situation. A healthcare power of attorney appoints a person to make those calls in real time, for situations your living will may not have anticipated.
Both documents work together. Arkansas law allows you to execute a combined Advance Healthcare Directive that covers both your written instructions and your agent designation in a single document. That’s what I recommend for most clients.
When It Takes Effect
Your healthcare power of attorney does not give your agent any authority while you’re capable of making your own decisions. It activates only when a physician — typically two physicians, depending on how the document is written — certifies that you lack the capacity to make or communicate your own healthcare decisions.
This might happen due to a medical emergency, a serious accident, advanced dementia, or any other condition that affects your ability to understand and communicate. Once that threshold is met, your agent steps in with full authority to make medical decisions consistent with your wishes and values.
Choosing Your Healthcare Agent
This is the decision that matters most. The document itself is relatively straightforward to execute. Choosing the right person requires real thought.
Your healthcare agent should be someone who knows you well enough to understand not just what you want, but why. Medicine involves judgment calls that no document can fully anticipate. Your agent may need to decide between two treatment options that your advance directive didn’t address, or they may need to hold a line against family members who are pushing for a different course of action.
A few practical considerations:
Availability and proximity matter. Your agent needs to be reachable quickly and ideally able to be physically present at a hospital in Fayetteville, Rogers, or Springdale when decisions need to be made. A sibling who lives across the country and travels frequently may not be the right choice, even if they’re your closest confidant.
Emotional steadiness under pressure. Medical crises are not the time for someone who falls apart under stress or who will be so overwhelmed by grief that they can’t communicate clearly with physicians.
Willingness to follow your wishes, not their own. The hardest situation arises when an agent’s personal beliefs or emotional needs conflict with what the patient actually wanted. Your agent needs to be able to set that aside.
You can name an alternate agent in case your primary agent is unavailable or unwilling to serve when the time comes. I always recommend naming at least one backup.
What Your Agent Can and Cannot Do
Once your healthcare power of attorney activates, your agent generally has broad authority over your medical care. This includes:
- Consenting to or refusing treatment, surgery, medication, or procedures
- Accessing your medical records under HIPAA
- Communicating with physicians, nurses, and specialists on your behalf
- Making decisions about hospice, palliative care, and end-of-life treatment
- Arranging transfer to a different facility if appropriate
There are limits. In Arkansas, your agent generally cannot authorize certain decisions — such as committing you to a mental health facility or consenting to sterilization — unless the document specifically grants that authority. Your agent also cannot override a decision you made while you were still competent.
One thing I flag for clients regularly: a healthcare power of attorney does not affect financial decisions. Your agent can direct your medical care but cannot access your bank accounts or pay your bills. Those powers require a separate durable power of attorney for finances. Both documents are part of a complete estate plan, and they should work in concert.
Arkansas-Specific Requirements
For a healthcare power of attorney to be valid in Arkansas, it must meet specific legal requirements under the Arkansas Health Care Decisions Act.
You must be at least 18 years old and of sound mind when you sign the document. The document must be signed in the presence of two adult witnesses. Those witnesses cannot be your healthcare agent, a relative by blood or marriage, anyone who would inherit from you, your attending physician, or an employee of your healthcare facility. These restrictions exist to prevent conflicts of interest.
Notarization is not required under Arkansas law for a healthcare power of attorney, but it is strongly recommended. A notarized document raises fewer questions when presented to hospital staff or insurers.
The Spouse Assumption Is Wrong
One of the most common misconceptions I encounter — from clients in Bentonville, Bella Vista, and everywhere in between — is that a spouse automatically has the authority to make medical decisions. This is not true under Arkansas law.
If you become incapacitated without a healthcare power of attorney, your spouse has no automatic legal authority over your medical care. Physicians will turn to family members for input, but there is no binding legal obligation to follow anyone’s wishes, and there is no clear hierarchy that prevents family disagreements from becoming legal disputes.
A healthcare power of attorney eliminates that ambiguity entirely by designating a single person with clear legal authority.
Frequently Asked Questions
Does a healthcare power of attorney expire? In Arkansas, a healthcare power of attorney remains valid until you revoke it. You can revoke it at any time while you have capacity, by notifying your agent in writing or by executing a new document. Getting married or divorced does not automatically revoke a healthcare power of attorney naming your former or current spouse, so it’s important to review this document after major life changes.
Can my agent override my advance directive? Your agent’s authority is meant to supplement your written instructions, not override them. If your advance directive clearly addresses a situation, your agent should follow it. In situations your directive didn’t anticipate, your agent’s job is to apply your values and known wishes to the decision at hand.
What if I don’t have one and become incapacitated? Arkansas law provides a default hierarchy of family members who can make decisions in the absence of a healthcare agent — generally starting with a spouse, then adult children, then parents. But this process is informal, and family disagreements can create real problems. A healthcare power of attorney is cleaner, faster, and legally binding.
Do I need an attorney to create one? You can find forms online, but I’d encourage caution. Generic forms often don’t account for Arkansas-specific requirements, and a document with technical defects may be rejected by a hospital at exactly the moment it’s needed most. For a document this important, an attorney review is worth the modest investment.
If you don’t have a healthcare power of attorney in place, or if yours is more than a few years old, I’d encourage you to make this a priority. We offer free consultations at our Lowell office, and we serve families throughout Benton and Washington Counties — Bentonville, Rogers, Fayetteville, Springdale, Bella Vista, and Lowell.
Book a Free Consultation (479) 717-6300
For more on related estate planning documents, see our pages on Advance Healthcare Directive, Durable Power of Attorney, and Estate Planning.
