Checklist · Wills and Estates

Executing a Durable Power of Attorney and Advance Directive: A Practical Checklist

42 U.S.C. § 1396

Type: Checklist
Jurisdiction: National
Date: 2025-11-26
Topic: Wills and Estates

This checklist executes a complete incapacity plan in eight phases and, critically, delivers it to the institutions that will have to honor it. Phase 1 selects the agents — which matters more than any drafting decision — and holds the conversation that makes substituted judgment possible. Phase 2 drafts the financial instrument, including the hot powers that must be expressly granted and the accountability devices that prevent exploitation, and Phase 3 drafts the health care documents while distinguishing the advance directive from the portable medical order that emergency responders actually follow. Phase 4 adds the freestanding HIPAA authorization that most plans omit and without which an agent cannot obtain the information needed to decide anything. Phases 5 and 6 cover capacity assessment, undue-influence indicators, the execution record that defeats a later challenge, and the state-specific formalities that are not interchangeable. Phase 7 is distribution, which is where plans fail, and Phase 8 covers the federal programs that do not recognize a power of attorney at all, plus maintenance and re-execution. Model language for the HIPAA authorization, the third-party acceptance provision, and the values statement is included, along with a ranked failure-mode list.

Executing a Durable Power of Attorney and Advance Directive: A Practical Checklist

Wills and Estates > Incapacity Planning | Published 26 November 2025 - Updated 23 July 2026 | UpLaw - uplaw.us

A plan sitting in a drawer that no institution has seen and no agent has read is, at the moment it is needed, indistinguishable from no plan at all. Phase 7 is the one that matters most and the one everyone skips.

Keywords: agent selection, hot powers, HIPAA authorization, POLST, capacity record, execution formalities, distribution, representative payee

How to use this checklist

Phases run in order. Under each are - [ ] items and a Why it matters, and the traps note. A running hypothetical — Wolfram Petrosyan (fictional), 74 and widowed, planning before he needs it — makes it concrete.

Doctrine is in Powers of Attorney and Advance Directives: A Comprehensive Guide to Planning for Incapacity. The narrative introduction is The Documents That Speak When You Cannot: Powers of Attorney and Health Care Directives. The resource map is The Incapacity Planning and Surrogate Decision-Making Toolkit.

Phase 1 — Choose the agents, and have the conversation

[ ] Select a financial agent: available, competent with money, willing to keep records, able to refuse relatives.
[ ] Select a health care agent: present, able to absorb clinical information, and willing to carry out the principal's wishes rather than their own.
[ ] Name at least two successors for each, and confirm willingness.
[ ] Decide against co-agents unless there is a specific reason; if used, state joint or several and how disagreement resolves.
[ ] Ask each named person before naming them.
[ ] Hold the values conversation: what makes life meaningful; under what circumstances treatment should not continue; what outcomes would be worse than dying; who should and should not be consulted.
[ ] Tell the wider family who was chosen and why.

Why it matters, and the traps. Every technical point in this checklist is secondary to who holds the authority. The oldest child is a default that produces bad outcomes with regularity, and a person who could not bear to withdraw treatment should not be the health care agent however loving they are.

The conversation is the substance of substituted judgment — the standard asking what this principal would have chosen. An agent who was never told is left guessing at the worst possible moment and, predictably, chooses what they can live with rather than what the principal wanted.

Worked example. Wolfram names his daughter Anahit as financial agent, his son Levon as first successor, and Anahit as health care agent with his sister as successor. He tells all three, and tells Levon explicitly why Anahit holds the financial role.

Phase 2 — Draft the financial instrument

[ ] State durability expressly, even where the state presumes it.
[ ] Make it immediately effective unless there is a specific reason otherwise.
[ ] Grant general authority by subject matter, tracking the statutory form where one exists.
[ ] Expressly grant each hot power needed: gifts (with donees and annual cap), trust amendment, beneficiary designations, survivorship rights, delegation, annuity waiver, disclaimer.
[ ] State expressly whether the agent may make gifts to themselves.
[ ] Add accountability: annual accounting to a named person; caps; co-signature above a threshold; a named monitor.
[ ] Address compensation and reimbursement.
[ ] Include a nomination of guardian and conservator.
[ ] Include third-party reliance and indemnity language citing the state acceptance statute.
[ ] Specify how a successor establishes authority.
[ ] State that copies are as effective as originals.

Why it matters, and the traps. A springing power feels safer and works worse: proving the trigger requires medical information the untriggered power does not authorize the agent to obtain. Immediate effectiveness plus careful agent selection is the prevailing advice.

Gifting authority is what permits Medicaid planning — see 42 U.S.C. § 1396p and Paying for Long-Term Care: Medicaid's Five-Year Look-Back and the Planning It Permits. Its absence forecloses planning at the moment it becomes necessary.

Silence on self-gifting is read against the agent in most states and generates litigation in all of them.

Phase 3 — Draft the health care documents

[ ] Appoint the agent first; instructions guide rather than replace them.
[ ] Grant authority to consent, refuse, withdraw, and access records.
[ ] Give instructions by scenario: terminal condition; permanent unconsciousness; serious stroke with uncertain prognosis; advancing dementia; severe temporary illness with recovery potential.
[ ] Give instructions by intervention: resuscitation, ventilation, artificial nutrition and hydration, dialysis, antibiotics, transfusion, hospitalization from a facility.
[ ] Address comfort care, expressly including pain relief that may hasten death.
[ ] Address anatomical gifts, autopsy, and disposition.
[ ] Address visitation and information sharing — essential for unmarried partners and chosen family.
[ ] Address pregnancy, if the principal wishes.
[ ] Include a values statement in the principal's own words.
[ ] Determine whether a POLST is appropriate — for serious illness or frailty, signed with a clinician.

Why it matters, and the traps. The common form addresses only terminal illness or permanent unconsciousness, which is the least common real scenario.

The POLST distinction is chronically missed. Emergency responders act on medical orders, not on advance directives. A person with a strong directive and no POLST may be resuscitated in circumstances they explicitly refused.

The constitutional backdrop is Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), and the facility obligations run through 42 U.S.C. § 1395cc.

Phase 4 — Add the HIPAA authorization

[ ] Draft a freestanding HIPAA authorization, separate from the directive.
[ ] Name both agents and all successors.
[ ] Make it immediately effective, not contingent on incapacity.
[ ] Include all categories of information, including mental health and substance use where the principal consents.
[ ] State that it has no expiration or a distant one.
[ ] Deliver copies to every treating provider.

Why it matters, and the traps. Disclosure is restricted by 45 C.F.R. part 164, with the administrative framework at 45 C.F.R. part 160 and statutory basis at 42 U.S.C. § 1320d. A health care agent is generally entitled to access, but providers refuse routinely where authority has not been triggered or the form is unfamiliar.

The authorization also breaks the springing-power circle. See HIPAA Compliance: A Practical Checklist.

Phase 5 — Assess and document capacity

[ ] Meet the principal alone, without the proposed agent present.
[ ] Confirm the principal understands the nature and effect of each document.
[ ] Confirm the choices are the principal's own.
[ ] Screen for undue influence indicators: unnatural disposition, confidential relationship, isolation, the beneficiary's participation in procuring the document, secrecy, haste.
[ ] Where capacity is questionable, obtain a contemporaneous physician's letter.
[ ] Write a detailed attorney memorandum of the discussion the same day.
[ ] Use disinterested witnesses.
[ ] Consider video of the signing in higher-risk matters.

Why it matters, and the traps. The threshold to sign is lower than people assume, and a person with a dementia diagnosis may retain capacity. The problem is proof later, not capacity now.

Meeting alone is the single most important step. An adult child who insists on being present during the discussion has just supplied the strongest evidence in a later undue-influence case.

Phase 6 — Execute correctly

[ ] Confirm the state's requirements: number of witnesses, notarization, or both.
[ ] Confirm who is disqualified as a witness — commonly the agent, the attending physician, and facility employees.
[ ] Confirm whether remote or electronic execution is permitted for these instruments in this state.
[ ] Execute each financial institution's own form alongside the general power.
[ ] Produce sufficient originals and conformed copies.
[ ] Attach the statutory agent certification where the state provides one.
[ ] Consider a second instrument conforming to the statutory form of any other state where the principal owns property or spends substantial time.

Why it matters, and the traps. Formalities are not interchangeable across states or between documents, and a directive witnessed by the agent is void in many jurisdictions.

On electronic execution: the federal framework at 15 U.S.C. § 7001 excludes categories of instruments under 15 U.S.C. § 7003, and state law controls what may be signed remotely. Verify before relying on it.

Phase 7 — Distribute, which is where plans fail

[ ] Copies of both powers to each agent and successor.
[ ] Copy of the directive and HIPAA authorization to the primary physician and into the chart.
[ ] Copy into each hospital system's records or patient portal.
[ ] Deliver the financial power to every institution in advance — bank, brokerage, retirement plan, insurer — and obtain written confirmation of acceptance.
[ ] Record the power in the land records if the state requires it for real property transactions.
[ ] Record where the originals are kept, and tell the agents.
[ ] Provide the letter of instruction: values, priorities, account and document locations, key contacts.
[ ] Give the POLST to the principal to keep visible at home, and copies to responders where the program provides for registration.

Why it matters, and the traps. This is the difference between a plan and a folder. Institutions refuse valid powers routinely, and the statutory remedy — a court order plus fees — takes weeks the family does not have. Advance delivery with written acceptance eliminates the problem entirely and is almost never done.

Worked example. Wolfram's daughter presents the power at the bank and there is no delay, because the bank's own form has been on file for three years.

Phase 8 — Federal programs, and maintenance

[ ] Apply for representative payee status if Social Security or SSI is or will be involved — a power of attorney is not sufficient. See 42 U.S.C. § 405 and 42 U.S.C. § 1383.
[ ] Begin the VA fiduciary process if veterans' benefits are involved — 38 U.S.C. § 5301.
[ ] Execute the IRS authorization form if tax representation will be needed.
[ ] Confirm retirement plan beneficiary procedures and any spousal-consent requirement — 29 U.S.C. § 1132.
[ ] Diary re-execution every three to five years.
[ ] Review after any move, divorce, death of an agent, or significant change in health.
[ ] Confirm the entity documents for any business interest do not conflict with the power.
[ ] Repeat the conversation.

Why it matters, and the traps. Families discover the representative-payee requirement at the bank, months in, and the application takes months more. Start it early. Divorce terminates a spouse-agent's authority by default in most states, and a decade-old document may no longer say what the principal thinks it says.

Model language

A. HIPAA authorization core

"I authorize all health care providers, health plans, and health care clearinghouses to disclose to [agent names and successors] any and all of my protected health information, including information relating to mental health and substance use treatment, without limitation. This authorization is effective immediately, is not conditioned on my incapacity, and remains effective until revoked in writing. A photocopy or electronic copy has the same effect as the original."

B. Third-party acceptance provision

"Any person or entity may rely upon this instrument and upon the authority of my agent. A person who in good faith accepts an acknowledged power of attorney without actual knowledge that it is void, invalid, or terminated is not subject to liability. My agent is authorized to provide the statutory certification attached hereto. I request that any person refusing to accept this instrument state the reason in writing, and I direct my agent to pursue all remedies provided by [state statute], including an order mandating acceptance and an award of reasonable attorney's fees."

C. Values statement prompt

"What matters most to me about how I live is []. I would not want treatment continued if []. I would want treatment tried, at least for a period, if there were a reasonable chance of []. I would consider the following outcomes worse than dying: []. Please consult [] and please do not involve []. I want my agent to know that whatever they decide in good faith, I trust them and they should not carry guilt for it."

That last sentence does more good than any other line in these documents.

Failure modes, ranked

No documents at all, leaving guardianship as the only route.
A springing power whose trigger cannot be proved when needed.
No HIPAA authorization, so the agent cannot obtain information.
Hot powers omitted, foreclosing gifting and Medicaid planning.
Never delivering the financial power to institutions in advance.
No POLST for a seriously ill principal, so responders resuscitate.
The agent witnessed the directive, voiding it in many states.
Meeting the principal with the proposed agent present, supplying undue-influence evidence.
Assuming Social Security recognizes a power of attorney. It does not.
A decade-old document naming a former spouse or a deceased agent.
Naming co-agents who deadlock.
No conversation, leaving the agent to guess.

Authorities at a glance

Authority	What it supplies
In re Quinlan, 355 A.2d 647 (N.J. 1976)	Substituted judgment by a surrogate
Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990)	Liberty interest in refusing treatment; evidentiary standard permitted
Washington v. Glucksberg, 521 U.S. 702 (1997) · Vacco v. Quill, 521 U.S. 793 (1997)	Limits of the constitutional right
42 U.S.C. § 1395cc	Patient Self-Determination Act obligations
45 C.F.R. part 164 · part 160	HIPAA privacy rules
42 U.S.C. § 1320d	Statutory basis for the privacy rules
42 U.S.C. § 1396p	Medicaid transfers — why gifting authority matters
42 U.S.C. § 405 · § 1383	Representative payee; a power of attorney is not enough
38 U.S.C. § 5301	VA fiduciary program
29 U.S.C. § 1132	ERISA constraints on beneficiary changes
15 U.S.C. § 7001 · § 7003	Electronic signatures and excluded instruments
Mathews v. Eldridge, 424 U.S. 319 (1976)	Due process in guardianship
Santosky v. Kramer, 455 U.S. 745 (1982)	Clear and convincing standard for fundamental interests
42 U.S.C. § 12132	ADA obligations affecting supported decision-making

State sources to locate: the power-of-attorney act and its statutory form; the health-care-decisions act and statutory directive; the POLST program; the surrogate-consent statute; the guardianship code and its less-restrictive-alternative requirement; any supported decision-making statute; and the acceptance-and-liability provision applicable to refusing institutions.

Three plans, worked

The seventy-four-year-old planning ahead

Wolfram executes all seven documents, delivers the financial power to his bank and brokerage with written acceptance, gets the directive into his health system's chart, and tells his three children who was named and why. Cost: one appointment. When the stroke comes, his daughter handles everything on Tuesday afternoon.

The eighteen-year-old leaving for school

Parents lose legal authority over medical decisions and access to records the day the child turns eighteen. Every eighteen-year-old should sign a health care proxy, a HIPAA authorization, and a limited financial power — twenty minutes, and it prevents the recurring scene in which a hospital declines to speak to a parent. For a young adult with a disability, evaluate supported decision-making before anyone files a guardianship petition. Educational records require their own authorization; see FERPA Compliance: A Practical Checklist.

The unmarried couple of thirty years

Surrogate-consent statutes in many states omit unmarried partners entirely, ranking an estranged sibling above a partner of three decades. Proxies, HIPAA authorizations, visitation designations, and financial powers are not optional planning here; they are the only mechanism. The same applies to chosen family and to stepchildren without a legal relationship.

What to say in the first ten minutes

Clients arrive expecting a discussion about forms. The productive conversation is about people and scenarios.

"Who would you want making medical decisions, and could they actually do it?" Not who loves you most — who could sit in a room with a physician and say no.

"Who would you want handling money, and would they keep records?" Different question, frequently a different person.

"Have you told them?" If not, that is the assignment before the next meeting.

"What would you want us to do if you had a stroke and might recover some function over a year?" This is the realistic scenario, and almost no standard form addresses it.

"Who should not be involved, and why?" Naming an exclusion is uncomfortable and prevents a great deal of later conflict.

For the agent, on the day the authority becomes real

A short list to hand a newly acting agent, because most have never done this and the early mistakes are the durable ones.

[ ] Read both documents before acting, and note exactly what authority you do and do not have.
[ ] Open a separate account for the principal's funds if none exists, and never commingle.
[ ] Sign as agent, in the required form — "Anahit Petrosyan, as agent for Wolfram Petrosyan" — not in your own name.
[ ] Keep every receipt, and reconcile monthly. Assume you will be asked to account.
[ ] Do not make gifts, including to yourself, unless the document expressly authorizes it and you have read the limits.
[ ] Do not change beneficiary designations unless expressly authorized; even then, get advice first.
[ ] Notify institutions in writing that you are acting, and provide the agent certification.
[ ] Apply for representative payee status if Social Security or SSI is involved; the power of attorney will not work.
[ ] Coordinate with the health care agent if it is a different person; the financial and medical decisions interact constantly.
[ ] Preserve the principal's estate plan where you know it and it is consistent with their interest.
[ ] Ask for help early. A one-hour consultation at the outset costs far less than an accounting dispute later.

And the single instruction that matters most for the health care agent: your job is not to decide what you think is best. It is to report what the principal would have decided. If you know, say so and hold to it. If you do not know, say that too, and ask the team to help you reason from what you do know about them.

Executing a Durable Power of Attorney and Advance Directive: A Practical Checklist

How to use this checklist

Phase 1 — Choose the agents, and have the conversation

Phase 2 — Draft the financial instrument

Phase 3 — Draft the health care documents

Phase 4 — Add the HIPAA authorization

Phase 5 — Assess and document capacity

Phase 6 — Execute correctly

Phase 7 — Distribute, which is where plans fail

Phase 8 — Federal programs, and maintenance

Model language

A. HIPAA authorization core

B. Third-party acceptance provision

C. Values statement prompt

Failure modes, ranked

Authorities at a glance

Three plans, worked

The seventy-four-year-old planning ahead

The eighteen-year-old leaving for school

The unmarried couple of thirty years

What to say in the first ten minutes

For the agent, on the day the authority becomes real

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