Guide
Power of attorney and advance directives before a nursing home
Updated October 15, 2026 · Reviewed against official sources
Why this matters before you look for care
When an older adult goes into a hospital or a nursing home, or applies for Medicaid, someone has to sign documents, talk with doctors, pay bills, and answer letters. Being their son or daughter doesn't automatically give you that right. Banks, hospitals, and Medicaid offices usually ask for a legal document that authorizes you.
The best time to prepare these papers is before a crisis, while your loved one has the capacity to understand what they're signing. If they already have an early-stage dementia diagnosis, it's often still possible: talk with a lawyer soon.
The main documents
| Document | What it's for |
|---|---|
| Durable power of attorney (for finances) | Names an agent to manage accounts, pay bills, collect benefits, and handle paperwork. "Durable" means it stays in effect if the person loses capacity. |
| Health care proxy or health care power of attorney | Names the person who will make medical decisions if your loved one can't speak for themselves. |
| Living will | Puts in writing which treatments they do or don't want at the end of life (ventilator, tube feeding, resuscitation). |
| Advance directive | A general term that usually includes the health care proxy and the living will. |
| POLST or MOLST medical order, depending on the state | An order signed by the doctor for people with a serious illness. It tells emergency teams what to do. |
| Guardianship or conservatorship | A judge appoints someone to make decisions for the person when they no longer have capacity and there are no documents signed in advance. |
Financial power of attorney
A power of attorney lets the person chosen (the agent) act on your loved one's behalf in money matters. It's key for:
- Paying the nursing home or assisted living community.
- Applying for Medicaid and turning in bank statements.
- Managing retirement savings or a pension.
- Selling or managing a house, if the document allows it.
Things to keep in mind:
- Make sure it's durable. A regular power of attorney ends when the person loses capacity, just when it's needed most.
- If your loved one might need Medicaid, it's a good idea for the power of attorney to specifically authorize Medicaid paperwork and certain transfers. An elder law attorney knows what to include for your state.
- Each state sets its own signing requirements: many require a notary, witnesses, or both.
- Social Security and the VA have their own systems for letting someone else manage benefits: Social Security's representative payee and the VA's fiduciary. A power of attorney doesn't replace that process; you have to apply for it separately.
In the U.S., a notary public only verifies identities and signatures. A notary is not a lawyer and can't give you legal advice, even though in many Latin American countries a "notario" is a lawyer. To draft these papers, look for a licensed attorney or a free legal service.
Advance directive and health care proxy
An advance directive honors your loved one's wishes and keeps siblings from having to guess at the hospital. Recommendations:
- Talk as a family about what your loved one values: being at home, avoiding aggressive treatment, receiving the sacraments, dying surrounded by family.
- Choose a health care agent who lives nearby, is available, and will respect those decisions even if they don't see things the same way.
- Also name an alternate in case the first person can't do it.
- Give copies to the doctor, the hospital, the nursing home, and family members. Keep the original somewhere easy to find.
- Review the document after a major diagnosis or a move to another state.
If it's hard to talk about this among siblings, read how to talk with your siblings about caring for your parents.
Under federal law, hospitals, nursing homes, home health agencies, and hospices that take part in Medicare or Medicaid must tell adults in writing about their right to make an advance directive, note in the medical record whether they have one, and not make care depend on whether they have one or not. Nursing home residents also have the right to accept or refuse treatment. See our guide to resident rights.
State forms and Spanish versions
Each state has its own rules about signatures, witnesses, and notaries. A directive made in one state isn't always accepted in another.
- CaringInfo (a nonprofit program) publishes each state's advance directive for free, with instructions. For several states, the page also includes a Spanish version.
- Many state health departments, attorneys general, and bar associations publish their own forms.
- Hospitals usually have forms and staff (a social worker or chaplain) who can help you fill them out. Ask for an interpreter if you need one: it's free at facilities that receive federal funds.
If your loved one signs a Spanish version, make sure it's the official form, or one that's accepted in your state, and ask the doctor to keep a copy.
Guardianship: when there are no documents
If your loved one has already lost capacity and didn't sign a power of attorney, the family will probably have to ask a court for guardianship or a financial conservatorship. It involves:
- Medical evaluations and hearings.
- Lawyer and court fees.
- Regular reports to the judge.
- Weeks or months of waiting, sometimes in the middle of an emergency.
Many states offer less restrictive alternatives, such as supported decision-making or a surrogate named by law to make medical decisions when there's no directive. Ask at the hospital or ask a lawyer what your state allows.
Where to get free or low-cost legal help
- Your local Area Agency on Aging (AAA) usually offers legal services for people 60 and older or can refer you to them. Find it through the Eldercare Locator: 1-800-677-1116, Monday through Friday, 9 a.m. to 8 p.m. Eastern time. If you prefer Spanish, ask for it when you call.
- Legal aid organizations help people with low incomes.
- Your state bar association has lawyer referral services.
Quick checklist
- Durable financial power of attorney.
- Health care proxy and living will (advance directive).
- POLST or MOLST if there's a serious illness.
- Representative payee for Social Security or VA fiduciary, if needed.
- Copies in the doctor's and the nursing home's records.
If you're arranging an urgent move from the hospital, also check our hospital discharge guide and our glossary of care terms. If your loved one lives in another state or country, read long-distance caregiving.
Frequently asked questions
Can my loved one with dementia still sign a power of attorney?
It depends on whether they understand what they're signing at that moment. In the early stages, many people still can. A lawyer and the doctor can help confirm it.
Is a power of attorney made in my home country valid in the U.S.?
Not always. U.S. banks and hospitals usually ask for documents that follow the rules of the state where the person lives. The safest option is to prepare the papers in that state.
If I have power of attorney, can I collect my mom's Social Security?
Not with the power of attorney alone. You have to apply to be her representative payee at the Social Security office.
Rules vary by state. This guide is not legal advice: talk with a lawyer licensed in your state.
Sources
- CaringInfo: advance directives by state (accessed October 15, 2026)
- Medicare.gov: advance directives and long-term care (accessed October 15, 2026)
- eCFR: 42 CFR 489.102, requirements for advance directives (accessed October 15, 2026)
- eCFR: 42 CFR 483.10, resident rights (accessed October 15, 2026)
- Social Security: representative payee (accessed October 15, 2026)
- ACL, Find Help (Eldercare Locator) (accessed October 15, 2026)
This is general information, not medical, legal or financial advice. Rules vary by state and by year: confirm with the official agency that applies to you.
Keep reading
Does Medicaid pay for care?
Yes, Medicaid pays for a nursing home if your loved one qualifies. 2026 limits, the 5-year look-back, spouse protections, waivers and how to apply.
Hospital discharge
What to do when an older adult is discharged from the hospital: inpatient vs. observation, Medicare's 3-day rule, how to appeal and a 48-hour checklist.
Memory care (Alzheimer's)
Memory care for Alzheimer's and dementia: what it is, when it's needed, what to ask on a visit, how each state regulates it and how to pay for it.
How to talk to your siblings about caring for Mom or Dad
How to hold a family meeting, divide tasks and costs based on what each sibling can give, and stay united while you care for Mom or Dad.
