Durable POA, Healthcare Proxy, Living Will: Who Decides What

The paper in the folder says Durable General Power of Attorney across the top. Fourteen pages, signed, notarized, drafted years ago by a lawyer who has since retired. A nurse asks whether anything is on file about who makes medical decisions, the folder changes hands, and it turns out to be the wrong document.

Not expired. Not badly drafted. Wrong category. Most families find that out in a hallway, even though the financial power of attorney statute often says so on its face, in a section near the front that nobody reads because it is titled "Applicability."

Three documents, three different questions

The dividing line is in the statute. Virginia's Uniform Power of Attorney Act applies to all powers of attorney except five things, and the second is "a power to make health care decisions" (Va. Code 64.2-1601, read 18 August 2026). The financial document is not being stingy. It was never in that business.

How many sheets of paper this comes to depends on the state. Virginia folds the health care side into one instrument: a written advance directive, signed before two subscribing witnesses, may specify the care the person does or does not authorize, appoint an agent, and record an anatomical gift (Va. Code 54.1-2983, read 18 August 2026). Other states keep the instruction directive and the proxy on separate forms. So "we have an advance directive" is not an answer. Open it and look for a page with a name and an address. No name, nobody appointed.

The National Institute on Aging makes the case for both in one line: a proxy "helps you plan for situations that cannot be foreseen." A living will answers the questions somebody thought of in advance. A proxy answers the ones at 2 a.m.

"Durable" does opposite work depending on the state

In Virginia, durability is the default: "A power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity of the principal" (Va. Code 64.2-1602, read 18 August 2026). Silence keeps it alive.

California runs the other way. Under Probate Code 4124 a power of attorney is durable only if it contains one of the listed statements, such as "This power of attorney shall not be affected by subsequent incapacity of the principal," or similar words showing that intent (read 18 August 2026). Silence there means the authority evaporates at exactly the moment the family needs it.

So the useful question about a document from 2011 is not whether it is recent. It is which state's default rule it was drafted against, and whether your parent still lives in that state.

Read termination in the same sitting. Virginia ends the power of attorney at the principal's death, on revocation, or when the document says so, and ends an agent's own authority for reasons including resignation, the filing of a divorce or separation action between agent and principal, and a conviction for financial exploitation (Va. Code 64.2-1608, read 18 August 2026). Death is the one that catches families out. Authority stops at that moment, so the final invoice and the refund of a community fee belong to the executor, not to whoever has been paying the bills for three years. The residency agreement walkthrough covers where that deposit language sits.

The eight things a general grant does not cover

Families assume a "general" power of attorney means everything. In Uniform Power of Attorney Act states it explicitly does not. An agent may do the following only if the document expressly grants the authority (Va. Code 64.2-1622(A), read 18 August 2026):

1. create, amend, revoke, or terminate an inter vivos trust
2. make a gift
3. create or change rights of survivorship
4. create or change a beneficiary designation
5. delegate authority granted under the power of attorney
6. waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
7. exercise fiduciary powers that the principal has authority to delegate
8. have authority over the content of the principal's electronic communications

Read that list with a nursing home admission in front of you. Numbers 2, 3 and 4 are the whole vocabulary of Medicaid planning — moving money, retitling a house, changing who is named on an account — and none of it is open to an agent whose document does not say so, however general the rest of it sounds.

A second limit sits right below. Unless the document provides otherwise, an agent who is not an ancestor, spouse, or descendant may not use the authority to create an interest in the principal's property in themselves, or in someone they owe a legal duty to support (64.2-1622(B)). A hired care manager serving as agent is on the wrong side of that sentence.

When the bank keeps the document and stops returning calls

A bank or brokerage that will not take the document is the recurring problem here. In UPOAA states a clock is attached to it.

A person presented with an acknowledged power of attorney has seven business days to accept it or to request an agent's certification, an English translation, or an opinion of counsel, then five business days after receiving that to accept. They also "may not require an additional or different form of power of attorney for authority granted in the power of attorney presented" (Va. Code 64.2-1618, read 18 August 2026). Six permitted refusals are listed, among them actual knowledge that the authority has ended, a good faith belief the power is invalid, and a good faith adult protective services report about the agent. "Acknowledged" means verified before a notary (64.2-1617) — much of why the trip is worth making even where it is not strictly required.

Two things to do when a teller says no. Ask which statutory ground is being relied on, in writing. Then ask whether a certification would resolve it, because that request is the move the statute anticipates. Where a state has not adopted this framework, the bank's internal policy may genuinely be the whole rule.

What the facility is required to ask on the day of admission

This part is federal and reaches well beyond nursing homes. Hospitals, critical access hospitals, skilled nursing and nursing facilities, home health agencies, hospices and others must keep written policies on advance directives and must (42 CFR 489.102, read via the eCFR versioner API on 18 August 2026, title 42 issue date 14 August 2026):

• give written information about the individual's rights under state law to accept or refuse treatment and to make advance directives
• state the provider's own policies, including "a clear and precise statement of limitation if the provider cannot implement an advance directive on the basis of conscience"
• document in a prominent part of the current medical record whether or not the individual has executed an advance directive
• not condition care or discriminate based on whether one exists
• say that complaints about these requirements may be filed with the state survey and certification agency

Timing is in paragraph (b): at admission as an inpatient for a hospital, at admission as a resident for a skilled nursing facility, in advance of care for a home health agency.

Two things follow for the folder you are carrying. The chart entry is a yes-or-no box, so hand the document over rather than describing it and ask for confirmation that a copy reached the record. Then ask for the conscience-limitation policy by name. The NIA puts the limit plainly: an advance directive is "legally recognized but not legally binding," and a provider who will not follow it must tell the proxy immediately and consider transferring care. That statement is where the possibility is disclosed before anyone moves in.

If nobody was named, a statute names someone

With no directive, or one that appoints no agent and does not cover the question, Virginia's Health Care Decisions Act sets an order of priority: guardian, then spouse unless a divorce action is pending, then adult child, parent, adult sibling, then any other relative in descending order of blood relationship. A further rung sits below that, but only for decisions not involving a life-prolonging procedure: an adult who has shown special care and concern for the patient and knows their values (Va. Code 54.1-2986, read 18 August 2026). Other states publish similar ladders with different rungs.

A default surrogate can authorize treatment and nothing beyond it. No check, no account closure, no benefit application. That gap is why guardianship and conservatorship petitions get filed, and why the paperwork is worth doing while a parent can still sign.

Recognition matters on the notice side too. Before a certified nursing facility transfers or discharges a resident it must notify the resident and the resident's representative in writing, and send a copy to the State Long-Term Care Ombudsman (42 CFR 483.15(c)(3), read 18 August 2026) — which matters when an appeal deadline is counted in days. The involuntary discharge clause walkthrough covers what the notice has to contain.

The copy in the binder is not the copy that counts

Three signed documents still will not open three particular doors, each of which takes its own key.

Medical records. HIPAA works through a "personal representative." Where applicable law gives a person authority to act for an adult "in making decisions related to health care," the covered entity must treat them as a personal representative for protected health information relevant to that representation, and must treat a personal representative as the individual (45 CFR 164.502(g)(1)-(2), read via the eCFR versioner API on 18 August 2026). Everything hangs on that phrase about health care decisions. A financial power of attorney does not supply it, which is why records departments turn it away.

Social Security. SSA's own manual is blunt: a power of attorney "is not recognized by the Treasury Department for the purposes of negotiating federal payments, including Social Security or SSI checks" (POMS GN 00502.139 A.6, effective 15 April 2016 and still marked current when read on 18 August 2026). Managing a parent's benefits means applying to be a representative payee, with its own accounting duties.

Medicare. Getting 1-800-MEDICARE to speak with you takes the Medicare Authorization to Disclose Personal Health Information, Form CMS-10106. It runs under OMB control number 0938-0930, reapproved 3 March 2026, so a copy saved a few years ago may not be the sheet CMS wants back (read 18 August 2026).

While the folder is open, get more copies than feels sensible: the facility, the practice, the hospital system and each bank will want one, and none will give it back. Check whether your state runs a registry: Virginia's Department of Health is required to make one available, the Advance Health Care Planning Registry (Va. Code 54.1-2994). And if a parent moves across a state line, put the whole set in front of an attorney there rather than assuming it travels. Execution requirements, witness rules and the durability default all change at the border.

One more line before signing anything at the facility. The admission agreement's signature block asks who is signing and in what capacity, and signing as agent is not the same act as signing personally. That line, not the power of attorney, is where families take on a debt they never meant to.

Sources

Every citation below was opened and read on 18 August 2026.

• Virginia's enactment of the Uniform Power of Attorney Act: 64.2-1601 applicability, 64.2-1602 durable by default, 64.2-1608 termination, 64.2-1617 and 64.2-1618 acceptance, the seven- and five-business-day clocks and the six refusal grounds, 64.2-1622 authority requiring a specific grant.
• Virginia Health Care Decisions Act: 54.1-2983 advance directive and witnesses, 54.1-2986 order of priority, 54.1-2994 registry.
• Cal. Probate Code 4124 — durability requires specific language. Virginia and California appear here only as two opposite defaults, not as a national rule; the Uniform Law Commission keeps the current list of enacting states.
• 42 CFR 489.102 provider requirements, 483.15(c)(3) transfer and discharge notice, and 45 CFR 164.502(g) personal representatives, both read through the eCFR versioner API; title 42 issue date 14 August 2026.
• SSA POMS GN 00502.139 A.6, NIA on advance directives, and Form CMS-10106 with its OMB clearance record.

This page is general information, not legal, medical, or financial advice. See the terms.