This article provides a brief overview of health care powers of attorney and living wills. To learn more about general/durable powers of attorney, please read the article on this website entitled “General/Durable Powers of Attorney.”

---

POWERS OF ATTORNEY

What is a power of attorney?

A power of attorney (or “POA”) is a written authorization to represent or act on behalf of another person.

The person who authorizes someone else to represent them or to act on their behalf is called the “principal.”

The person who is authorized by the principal to represent the principal or to act on the principal’s behalf is called the “agent.” When the POA involves the principal’s health care, the agent is called the “health care representative.”

What is a health care power of attorney?

A health care POA is a written authorization permitting a health care representative to make future health care decisions involving the principal on behalf of the principal if and when the principal loses the capacity to make such decisions themselves.

If and when the principal becomes unable to make their own health care decisions, the principal’s health care representative may exercise the authority granted by the POA to make the principal’s health care decisions for them.

A mental health care POA is a separate written authorization permitting a health care representative to make future mental health care decisions involving the principal on behalf of the principal if and when the principal loses the capacity to make such decisions themselves.

How is a health care POA created?

A health care POA is created when, after the document has been prepared and the principal has reviewed and understands it, either:

(a) the principal (or someone authorized by the principal to sign on behalf of the principal if the principal is unable to themselves) signs the document in front of a Notary Public; or

(b) the principal (or someone authorized by the principal to sign on behalf of the principal if the principal is unable to themselves) signs the document in front of a witness.

Neither the witness (if a witness is chosen) nor the Notary Public (if a Notary Public is chosen) may be someone who is: under the age of 18; related to the principal by blood, adoption, or marriage; entitled to any part of the principal’s estate; appointed as the principal’s representative; or involved in providing the principal’s health care at the time the POA is created.

What should the principal do with a health care POA after it has been created?

After a health care POA has been created, the principal should make multiple copies of the document, give one copy to the health care representative, bring the original and a copy to any person or organization that the principal thinks should know about the POA, leave a copy with any such person or organization, and keep the original in a safe place in the principal’s possession.

May a health care POA be revoked?

Yes, the principal may revoke a health care POA, so long as the principal has legal capacity, by revoking it in writing, by orally notifying the health care provider, or by creating a new health care POA.

When may a health care representative begin making decisions on behalf of the principal?

As a general rule, a health care representative may begin making health care decisions on behalf of the principal if and when the principal becomes unable to make or communicate health care decisions, whether due to mental or physical illness, injury, disability, or incapacity.

If the principal is not capable of making their own health care decisions but is able to communicate in some way, then the health care representative should discuss the principal’s health care options with the principal to whatever extent is possible.

What sorts of decisions may a health care representative generally make?

The health care decisions that a health care representative generally may make on behalf of the principal include following:

-- consent to or refuse medical care for the principal, including diagnostic, surgical, or therapeutic procedures

-- authorize physicians, nurses, therapists, and other health care providers to adopt the health care representative’s choices regarding the principal’s health care

-- obligate the principal’s resources or estate to pay reasonable compensation for health care services provided

-- approve or deny the principal’s admittance to health care institutions, nursing homes, assisted living facilities, or other facilities or programs (with the exception of any structured mental health treatment setting with 24-hour-a-day supervision and an intensive treatment program, known as a “level one” behavioral health facility, for which a separate grant of authority, through a mental health care POA, is required)

-- have access to and control over the principal’s health care records and the authority to discuss those records with health care providers

May the principal deny authorization for certain kinds of decisions?

Yes, the principal may specify that the health care representative may not make certain kinds of heath care decisions.

What Arizona law governs health care POAs?

Health care POAs are governed by A.R.S. Title 36, Chapter 32, Article 2, at § 36-3221 et seq. Mental health care POAs are governed by A.R.S. Title 36, Chapter 32, Article 6, at § 36-3281 et seq.

LIVING WILLS

What is a “living will”?

A living will is a document through which the principal states in advance their decisions about the medical treatment they authorize (or do not authorize) should they ever be in a terminal condition, a persistent vegetative state, or an irreversible coma. 

How does a living will differ from a health care POA?

The purpose of a health care POA is to authorize another person (a health care representative) to make health care decisions on the principal’s behalf if and when the principal becomes unable to make their own health care decisions.

The purpose of a living will is to specify in advance what types of medical treatment the principal would like to receive (or not receive) in certain situations.

How is a living will created?

A living will is created when, after the document has been prepared and the principal has carefully reviewed and understands it, either:

(a) the principal (or someone authorized by the principal to sign on behalf of the principal if the principal is unable to themselves) signs the document in front of a Notary Public; or

(b) the principal (or someone authorized by the principal to sign on behalf of the principal if the principal is unable to themselves) signs the document in front of a witness.

Neither the witness (if a witness is chosen) nor the Notary Public (if a Notary Public is chosen) may be someone who is: under the age of 18; related to the principal by blood, adoption, or marriage; entitled to any part of the principal’s estate; appointed as the principal’s representative; or involved in providing the principal’s health care at the time the living will is created.

What should the principal do with a living will after it has been created?

After a living will has been created, the principal should make multiple copies of the document, give one copy to the health care representative, bring the original and a copy to any person or organization that the principal thinks should know about the living will, leave a copy with any such person or organization, and keep the original in a safe place in the principal’s possession.

If the principal has both a living will and a health care POA, the living will must be attached to the original health care POA, and a copy of the living will should be attached to every copy of the health care POA.

May a living will be revoked?

Yes, the principal may revoke a living will, so long as the principal has legal capacity, by revoking it in writing, by orally notifying the health care provider, or by creating a new living will.

What sorts of medical treatment decisions do living wills usually cover?

The medical treatment decisions that living wills usually cover include decisions about whether the principal wants any of the following should they ever be in a terminal condition, a persistent vegetative state, or an irreversible coma:

-- comfort care only: if the principal has a terminal condition but does not want their life to be prolonged through life-sustaining treatment beyond comfort care (which is treatment intended only to protect and enhance the principal’s quality of life without artificially prolonging it)

-- specific limitations on medical treatments: if the principal does not want, for example, cardiopulmonary resuscitation (through the use of drugs, electric shock, and/or artificial breathing) or artificial administration of foods and/or fluids

-- pregnancy: if the principal does not want life-sustaining treatment withheld or withdrawn if the principal is known to be pregnant and it is possible that the embryo/fetus will develop to the point of live birth with the continued application of life-sustaining treatment

-- treatment until the medical condition is reasonably known: if the principal wants all medical care required to treat the principal’s condition, but only until such time as the principal’s doctors reasonably conclude the principal’s condition is terminal or is irreversible and incurable, or the principal is in a persistent vegetative state

-- direction to prolong life: if the principal wants their life to be prolonged to the greatest extent possible (this choice is in incompatible with the other four)

What Arizona law governs living wills?

Living wills are governed by A.R.S. Title 36, Chapter 32, Article 5, at §§ 36-3261-62.

PRE-HOSPITAL MEDICAL CARE DIRECTIVE (a.k.a. “DO NOT RESUSCITATE”)

What is a Pre-Hospital Medical Care Directive?

A pre-hospital medical care directive (or “DNR”) is a separate document that informs emergency medical technicians (EMTs) or hospital emergency personnel to not resuscitate the principal. It informs EMTs and other emergency personnel that in the event the principal experiences cardiac and/or respiratory arrest, the principal refuses to authorize resuscitation measures, including cardiac compression, endotracheal intubation, and other advanced airway management, artificial ventilation, defibrillation, administration of advanced cardiac life support drugs, and related emergency medical procedures. Medical treatment that is necessary to provide comfort care or to alleviate pain will not be withheld.

How is a DNR created?

A DNR is created when, after the document has been prepared and the principal has carefully reviewed and understands it:

1. the principal’s doctor or other licensed health care provider certifies that they have explained the pre-hospital medical care directive and its consequences to the principal and obtained assurance that the principal understands that death may result from their refusal to authorize resuscitation measures; and

2. (a) the principal (or someone authorized by the principal to sign on behalf of the principal if the principal is unable to themselves) signs the document in front of a Notary Public; or

(b) the principal (or someone authorized by the principal to sign on behalf of the principal if the principal is unable to themselves) signs the document in front of a witness.

Neither the witness (if a witness is chosen) nor the Notary Public (if a Notary Public is chosen) may be someone who is: under the age of 18; related to the principal by blood, adoption, or marriage; entitled to any part of the principal’s estate; appointed as the principal’s representative; or involved in providing the principal’s health care at the time the DNR is created.

What should the principal do with a DNR after it has been created?

After a DNR has been created, it must be printed on easily noticeable ORANGE PAPER and placed in a conspicuous place in letter size (for example, on the principal’s refrigerator) and/or in wallet size (for example, in the principal’s wallet or purse).

May a DNR be revoked?

Yes, the principal may revoke a DNR by revoking it in writing, by destroying the DNR, or by orally notifying the responding EMTs and other emergency personnel.

What Arizona law governs DNRs?

DNRs are governed by A.R.S. Title 36, Chapter 32, Article 4, at § 36-3251.

Sources and further reading

Arizona Revised Statutes (A.R.S.) Title 36: https://www.azleg.gov/arsDetail/?title=36

Office of the Arizona Attorney General – “Do Not Resuscitate”: https://www.azag.gov/sites/default/files/docs/seniors/life-care/2023/LCP-DNR.pdf

Office of the Arizona Attorney General – “Health Care Power of Attorney: Instructions and Form”: https://www.azag.gov/sites/default/files/docs/seniors/life-care/2023/LCP-Healthcare-POA.pdf

Office of the Arizona Attorney General – “Mental Health Care Power of Attorney: Instructions and Form”: https://www.azag.gov/sites/default/files/docs/seniors/life-care/2023/LCP-Mental-Healthcare-POA.pdf

Office of the Arizona Attorney General – “Living Will: Instructions and Form”: https://www.azag.gov/sites/default/files/docs/seniors/life-care/2023/LCP-Living-Will.pdf

Office of the Arizona Attorney General – “Life Care Planning”: https://www.azag.gov/seniors/life-care-planning

Office of the Arizona Attorney General – “Life Care Planning: Frequently Asked Questions”: https://www.azag.gov/sites/default/files/docs/seniors/life-care/2023/FAQs-for-the-Website.pdf

Office of the Arizona Attorney General – “Life Care Planning Packet”: https://www.azag.gov/sites/default/files/docs/seniors/life-care/2023/LCP-Complete-Packet-fillable.pdf