Resolving Conflict: Power of Attorney vs. Healthcare Directive – Which One Prevails?

Granting someone the authority to make important decisions on your behalf is a responsible and often necessary step to ensure your wishes are honored when you are unable to make them yourself. Two common legal documents used for this purpose are the power of attorney and healthcare directive. However, what happens if these documents conflict? Which one takes precedence? In this article, we will explore the key differences between a power of attorney and a healthcare directive and discuss how conflicts between them can be resolved.

Understanding Power of Attorney

A power of attorney (POA) is a legal document that grants an individual, known as the agent or attorney-in-fact, the authority to act on behalf of another person, known as the principal. The scope of authority granted can vary, ranging from financial matters to healthcare decisions. A general power of attorney grants broad powers, while a limited power of attorney specifies certain areas in which the agent can act.

Exploring Healthcare Directives

A healthcare directive, also referred to as a living will or advance healthcare directive, is a legal document that outlines an individual’s healthcare preferences in the event they become incapacitated or unable to communicate their wishes. It often includes instructions regarding medical treatments, life-sustaining measures, and end-of-life care. A healthcare directive is designed to guide healthcare providers and appointed agents in making decisions in line with the person’s expressed desires.

Conflicting Provisions and Resolution

When a power of attorney and healthcare directive conflict, it can create confusion and uncertainty. It is important to understand that the resolution may vary based on jurisdiction and the specific language used in the documents. However, some general principles can guide the decision-making process:

  1. Specificity: The level of specificity in the documents can play a significant role in resolving conflicts. If the power of attorney or healthcare directive contains specific instructions or preferences, those instructions will generally prevail over general or conflicting provisions.
  2. Timing and Scope: Consideration is given to the timing and scope of the decisions being made. Healthcare directives primarily deal with medical decisions, while powers of attorney may encompass a wider range of authority. If the conflict pertains to healthcare-related matters, the healthcare directive is likely to take precedence.
  3. Intent and Priorities: The intent of the individual granting the powers should be taken into account. If they have expressed clear priorities or preferences, those intentions should guide the decision-making process.
  4. Professional Advice: In cases where conflicts persist or cannot be resolved easily, seeking legal advice or consulting with healthcare professionals can provide valuable guidance. They can help interpret the documents, provide insight into legal requirements, and assist in reaching a resolution that aligns with the individual’s best interests.


Both a power of attorney and a healthcare directive serve essential roles in ensuring that an individual’s wishes are respected when they are unable to make decisions for themselves. While conflicts between these two documents can arise, it is crucial to approach them with care and seek legal advice when necessary. Resolving conflicts may involve considering the specificity of instructions, timing, scope, the intent of the individual, and professional guidance. Ultimately, the goal is to find a solution that upholds the individual’s best interests and ensures their wishes are respected, even during times of incapacity.

Video Transcript

If a Power of Attorney and Healthcare Directive Conflict, Which One Prevails?

Let’s talk about what both of those are. A health care directive is sometimes called a living will. It is a legal document recognized under state law that allows a person to designate someone else to make medical and health care decisions for them. So, for example, if a person is unconscious or affected so much by the drugs in a hospital that they are not able to make decisions for themselves, the person they have designated in their health care directive or living will make those decisions for them. So typically, a healthcare directive is put on file with a hospital. For example, when I went and had surgery at the hospital, they asked me before I went in for the procedure, “Do you have a healthcare directive on file? And if not, would you like to get one?” And some hospitals even have a little form where you can fill out who is in charge of any medical decisions while you are under if decisions need to be made and you can’t provide guidance to the doctors.

What might those decisions be? For example, let’s say a doctor gets into an operation and finds a spot of cancer and believes it should be removed, but removing it would also have some risks. The doctor doesn’t want to make a decision herself. She would like to consult with the patient, but the patient is under, the patient is in surgery, and the patient can’t come in. If the patient has a designated someone to make those health care decisions in a health care directive or living will, the doctor can explain the risk to the agent in the health care directive, and the agent can make the final decision.

What is a Power of Attorney?

A power of attorney is very similar. It is where one person designates someone else. You can call them an agent or an attorney-in-fact, and that person can make decisions for someone if they can’t. So, for example, a power of attorney might be used if you are traveling to another country and you need to designate somebody who can sign legal documents in your country while you are gone. Say, for example, you have a real estate sale coming up or a closing, and the closing is going to happen while you are traveling outside of the United States. Let’s say you are in Europe. You are not going to be present in the United States for that real estate closing, so you can’t sign the documents. What can you do? You can have a power of attorney to designate a spouse or a real estate agent or an attorney, or a friend to sign those real estate documents for you. That is the purpose of a power of attorney.

What Happens if a Power of Attorney Conflicts With a Health Care Directive or Living Will?

First off, usually, that doesn’t happen, and here is why. A power of attorney is for legal and business decisions. The health care directive is for medical and health care decisions. By the way, sometimes a health care directive, sometimes called a living will, is called a health care power of attorney or medical power of attorney or power of attorney for health care. But let’s say, hypothetically, somebody has signed a health care directive that appoints one person to make decisions for their medical decisions, and they also sign a power of attorney, which covers that same decision; maybe it says medical decisions, or maybe it says financial decisions and the decision that needs to be made has a financial component and a medical component. So that is the question we have here.

How Do We Resolve the Fact if They Conflict?

So first off, it is a mess. It is not really clear, but usually, what would happen if the person who was appointed most recently had the authority to make that decision. But I will acknowledge that if the older document did not expire and that person wasn’t replaced by the new document, we admittedly have two people authorized to make the decision. That means they can both make the decision without consulting the other. So often, hospitals, as a practical matter, will simply rely on the decision made by whoever they are talking to. They may not even know there is another person out there to make the decision. Now, what happens, though, if both, we will call them agents who have been empowered with making the decision, tell the doctor to do the opposite. What happens, then? Well, that is a very difficult decision for the doctor. If the doctor asked me what to do, I would say, you are in a legal quandary, and you are going to have to make the best decision you can because you don’t have clarity regarding what the patient wants.

Now you might say, but Aaron, didn’t you just say that the most recent power of attorney or document prevails? I did, but in a scenario where a doctor is being told two conflicting decisions or choices about a decision. And both of those people were lawfully appointed to make the decision by the patient who is unconscious or unable to make the decision. I believe legally, the doctor does not have clear direction regarding the patient’s intent and thus either needs to get a court to make that decision or the doctor needs to make the decision herself.


So this is messy. And if you find yourself in this position, I would recommend contacting an attorney. I have actually seen one similar scenario like this. And ultimately, there was an effort to get a court to make a decision. A lot of times, courts have a process where they have a judge who is on-call to make emergency decisions, and you file papers with the court for an emergency action. Sometimes it is called an emergency TRO or temporary restraining order, where one party is trying to restrain another party from taking action contrary to what they want. So if you are in this position, you can try to negotiate with the doctor or whoever is making that decision. If you are not getting your will, then you may need to immediately seek an emergency TRO from a court.


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