Advance Medical Directives: Who Makes Health Care Decisions If You Can’t?

Being able to make health care decisions for ourselves is very important, but what happens if you become incapacitated and are unable to voice an opinion concerning your medical care?  If you don’t have a health care proxy or guardian in place, state law chooses who can make those decisions.

A few states, such as New Jersey, do not have laws dictating who can act in an incapacitated person’s place. In those states, your family may have to go to court to get a guardian appointed. The best way to avoid the difficulty of guardianship is to have a health care proxy (or health care power of attorney) in place. A health care proxy is usually drafted as part of an Advance Medical Directive.


An “Advance Medical Directive” (also known as a “health care advance directive” or “instruction directive”) is a written statement made by the patient concerning future health care wishes. Advance directives consist of two parts: a “living will” and a “health care proxy” (a “health care power of attorney”).

1. Living Will

A living will is a document in which a patient provides direction regarding medical treatments that the patient wishes to accept or refuse under various circumstances. The patient may provide itemized guidelines for carrying out future medical needs in the event that he or she is unable to participate in making those decisions.

The preferences specified in a living will may be made within the context of various hypothetical medical scenarios, such as if the patient is severely impaired cognitively; has a serious irreversible illness; has a terminal condition; or is permanently comatose.  Under these various scenarios, the patient may indicate preferences regarding such issues as nutrition and hydration, life-sustaining treatment, do-not-resuscitate (“DNR”) orders, do-not-hospitalize (“DNH”) orders, pain management, euthanasia, or compliance with a particular religion. The living will may express the preference to be cared for at home, instead of in a hospital or institution. It may also cover issues such as organ donation, autopsy, burial or cremation, and memorial services.

The living will provides guidance to medical providers and to the individual whom a patient may appoint as the health care proxy.

2. Health Care Proxy 

A health care proxy (“medical power of attorney”) is a document designating an agent (surrogate decision-maker) to act on the patient’s behalf with respect to medical decisions. A health care proxy may be written to give the agent limited or broad authority over the patient’s medical affairs, and it need not be restricted to decisions concerning end-of-life. A health care proxy document may be executed in conjunction with a living will. However, just as a living will may be a stand-alone document, a patient may choose to execute a health care proxy only, without a corresponding living will.

The health care proxy is more flexible than the living will because, as specific future medical issues and circumstances arise, the agent will have the opportunity to evaluate those circumstances, some of which may not have been contemplated or addressed by the patient in his or her living will.

Because the health care proxy is potentially given vast powers and responsibilities, it is vital that the proxy be carefully chosen. It is also important for the patient to consider appointing an alternate health care proxy, in the event that the primary proxy is unwilling or unable to serve.

For additional information concerning estate planning and administration, visit:

Estate Planning and Administration