When a Health Care Proxy and Power of Attorney Disagree

You can help your loved one legally appoint trusted individuals to speak on their behalf. This includes a health care proxy and a power of attorney. We’ll help to clarify the difference between the two, how they work, and how to manage conflicts that may arise between them.

In this article:

• Health care proxy vs. power of attorney
• How to appoint agents for health care proxy and power of attorney
• Dividing health care proxy and power of attorney duties
• Preventing conflict between a health care proxy and power of attorney

First, it’s helpful to understand the difference between a health care proxy and a power of attorney.

A health care proxy grants the authority to make medical decisions, and a power of attorney grants the authority to make financial decisions. Both documents appoint people to make important decisions in the event that your loved one becomes incapacitated. The definition of incapacity varies by state — when setting up a health care proxy, be sure to consult an elder law attorney about specifics.

Technically, both of these terms refer to a legal document, rather than the person appointed for decision making. Colloquially, however, they are often used in reference to the person who has been assigned the duties outlined in the document.

The person on whose behalf decisions are made (for instance, your parent or loved one) is the principal of the document. The decision-maker, or person appointed by the principal, is the agent. The primary difference between these documents is the specific type of decisions that they give the agent charge of.

What is a health care proxy?

A health care proxy agent is legally appointed to speak for a person regarding medical decisions when the principal is incapacitated. A health care proxy agent is also known by several other names:

• Medical proxy
• Health care agent
• Health care power of attorney
• Health care representative
• Medical power of attorney

Perhaps your loved one is experiencing dementia and needs to be placed in memory care. The health care proxy agent’s obligation is to find care that the principal might choose if they were still able.

Or maybe the principal is in a coma or on life support. One of the health care proxy agent’s jobs is to ensure doctors comply with the principal’s stated wishes about being kept on life support.

Sometimes, a health care proxy is considered durable. In that case, the agent can make a decision even if the senior didn’t explicitly state their wishes before becoming incapacitated.

When does a health care proxy go into effect?

A health care proxy agent does not step in to make your loved one’s medical decisions until they are unable to make the decision themselves. If your parent has a medical proxy in place but is still in relatively good health and able to advocate for themselves, they still retain full agency over their medical decisions. This only changes if your loved one is no longer able to advocate for their own medical care.

What is a power of attorney?

In the context of this article, we’ll use the term “power of attorney” as a synonym for “financial power of attorney.” As mentioned above, a health care proxy is occasionally also referred to as a “medical power of attorney.” This language can be complex. For more information, refer to our complete guide on types of power of attorney.

A financial power of attorney — henceforth referred to as simply power of attorney — agent is responsible for making the principal’s financial decisions. This can include signing checks to pay the principal’s bills when they can no longer do so themselves. It can even include more permanent choices like managing their real estate and other assets.

Let our care assessment guide you

Some decisions, however, can overlap with the medical proxy’s decisions. One area of overlap can be choosing care options that will be covered by the principal’s financial assets.

Note also that each of these types of documents and their agents may have different names, depending on the state. Make sure you know the correct legal terminology in your loved one’s state.

Most commonly, medical and financial choices are left to an elderly person’s adult children, if they have them. Otherwise, a trusted friend or family member who is in good health can step in for one or both of these roles. If a senior does not have a trusted friend or relative to act on their behalf, they can also select an attorney of the state to represent them.

One person may be appointed to be both the power of attorney and health care proxy agent, but they don’t have to be. If your loved one has more than one adult child, they may prefer to share the responsibility. However, the choices made by the two types of agents can often overlap, such as when a medical or health care-related decision involves utilizing the principal’s financial resources to pay for care.

Help your parent choose their representative(s) based on the answers to these questions:

• How much do they trust the individual?
• What are his or her strengths?
• Does picking this person avoid conflicts of interest?

Choosing a health care proxy agent

An ideal health care or medical proxy agent is going to be able to put aside their own preferences and prioritize the principal’s wishes. For example, your loved one may pose objections to being offered drastic lifesaving measures. An appropriate health care proxy will prioritize the principal’s choices regardless of their own preference or prior biases. They will carry out those wishes even if saying goodbye is painful.

If a possible medical proxy agent has religious or moral beliefs that would prevent them from carrying out the principal’s health care directives, then this person probably isn’t a proper candidate.

Put simply, health care proxy agents are expected to make choices based on what option would best align with what the principal wants. Help your loved one choose a proxy who will be able to honor their wishes.

Choosing a power of attorney agent

Keep in mind the strengths of your potential agents. If one of a senior’s children is better with financial planning than the others, this person may be a good option for power of attorney.

With financial representation, it’s once again best to avoid conflicts of interest. If a person would be inclined to cut corners with medical care in order to keep from depleting a potential inheritance, this person would not be a good fit for power of attorney. As with a medical proxy, a power of attorney agent should be able to prioritize and carry out the principal’s wishes. This comes with the added complexity of responsibly managing the principal’s assets.

If you are asked to represent your parent in making medical or financial decisions, it’s okay to know your limits. If you feel that the responsibility would be too great, or that you wouldn’t be the right fit, you can say no to being appointed a health care proxy or power of attorney. Your parent can also transfer the power of attorney if your life circumstances change and you no longer wish to be their agent.

Unfortunately, conflict between the medical proxy agent and the power of attorney agent is an all-too-common occurrence — especially when the agents are siblings.

Parents often divide responsibilities equally in an effort to be fair. They don’t realize how problematic a decision that can be.

Talk with a Senior Living Advisor

It’s quite common for siblings to have ongoing rivalries or disagreements. When these are paired with the emotionally fraught decisions of caring for an aging parent, existing family conflicts tend to escalate quickly.

Although the health care proxy and power of attorney grant different responsibilities, there are certain circumstances in which health care and financial decisions will overlap. For example, while a health care proxy agent may choose a senior living community, the power of attorney agent must release the funds to pay for it.

The problem, of course, comes when the health care proxy and the power of attorney agents don’t agree. At that point, the proper care of a parent can become a legal matter.

Unfortunately, this option drains valuable energy, money, and time, and it may not always turn out in a way that helps anyone get what they want.

In fact, when you tell a court that your sibling is not a good power of attorney — and that you would be a better candidate — the court will often see this as a red flag, and may remove authority from both agents. The court will then appoint a third-party guardian to make decisions in your place.

It doesn’t have to be this way. Here are three things you can help your parents do to avoid this kind of sibling conflict and potential legal proceedings.

1. Appoint power of attorney and health care proxy to the same person. Because so many of the care decisions will need to be made in cooperation with each other, it may make things easier in the long run if there’s one person making the decisions.
2. If your parent insists on shared duties, guide them in selecting a skilled mediator ahead of time. While having one agent is a simple solution, having shared responsibilities between individual agents isn’t always bad.
3. Prevent squabbles by asking your parents to outline their wishes in advance. Within their written statement, it’s important to include medical decisions, such as whether they’d like to age in place or move to senior living. They should also include financial decisions, such as what property can be sold to pay for care. This kind of written narrative can help you and your siblings avoid disagreements. You will know exactly what your parents want. It’s much easier to have the decision made ahead of time, rather than having to weigh your options in the midst of an emergency.

In the end, you don’t want your parents to suffer because of sibling squabbles. Take these proactive steps so you can keep the peace and secure favorable financial and medical outcomes for Dad and Mom.

Sources:

American Bar Association. Living wills, health care proxies, & advanced health care directives.

Gentreo. Health care proxy, power of attorney for health care, health care agent & more: What it’s called in every state.

Hospital for Special Surgery. (2022). Health care proxy.

Raphan, B. Family feuds over power of attorney. Raphan Law Partners, LLC.

The information contained in this article is for informational purposes only and is not intended to constitute legal advice or create an attorney-client relationship between A Place for Mom and the reader. Always seek the advice of your attorney with respect to any particular legal matter, and do not act or refrain from acting on the basis of anything you have read on this site. Links to third-party websites are only for the convenience of the reader; A Place for Mom does not endorse the contents of the third-party sites.