Arkansas Medical Power of Attorney: How to Appoint a Healthcare Agent

Your adult daughter lives three hours away. Your spouse has early-stage dementia. Your doctor asks who should make decisions if you can't speak for yourself — and you have no legal answer. That gap is exactly what an Arkansas medical power of attorney fills.

Under the Arkansas Healthcare Decisions Act of 2013 (Arkansas Code § 20-6-101 et seq.), any competent adult can appoint a healthcare agent — sometimes called a health care proxy — to make medical decisions during temporary or permanent incapacity. Here's how to do it correctly so your document actually holds up when hospitals need it.

Who Can Serve as Your Healthcare Agent in Arkansas

Arkansas law sets clear boundaries. Your designated agent must be a competent adult, but cannot be:

• Your treating healthcare provider
• A nonrelative employee of the treating facility

Beyond those exclusions, you can appoint anyone: a spouse, adult child, sibling, trusted friend, or unmarried partner. You must also name at least one alternate agent in case your primary choice is unavailable or unwilling when the time comes.

A critical point for unmarried couples: Arkansas's default surrogate hierarchy under § 20-6-106 completely excludes domestic partners from the primary biological tiers. An estranged parent or sibling can legally override an unmarried partner's bedside authority. A formal medical power of attorney is the only document that prevents this.

How to Execute the Document Legally

The Appointment of Health Care Agent form must be signed by you (the principal) and finalized through one of two methods:

Option 1: Notarization — Acknowledgment before a qualified notary public. This is the strongest option and hardest to challenge in court.

Option 2: Two-witness attestation — Both witnesses must be competent adults. Neither witness can be your designated healthcare agent. At least one witness must be entirely unrelated to you by blood, marriage, or adoption and must not be entitled to any portion of your estate.

If your cousin signs as a witness but stands to inherit under your will, the document is void. Hospitals will refuse to honor it and default to the statutory surrogate hierarchy.

When the Medical Power of Attorney Activates

The document becomes effective when your treating physician determines you lack decision-making capacity — defined as the ability to understand the significant benefits, risks, and alternatives to proposed healthcare. Unlike a financial power of attorney, it does not grant your agent any authority over property, finances, or real estate.

This distinction matters in Arkansas because of dower and curtesy laws. Your healthcare agent's authority is strictly medical. They cannot sell your home, access joint bank accounts, or release spousal property rights. Those actions require a separate financial durable power of attorney.

What Your Agent Can and Cannot Decide

Your agent operates under a legal standard called "substituted judgment" — they must make decisions based on your known values and specific instructions, not their own preferences. Their authority covers:

• Consenting to or refusing medical treatment
• Choosing healthcare facilities
• Authorizing discharge or transfer
• Accessing your medical records
• Directing comfort care, hospice, or palliative measures

They cannot override a valid POLST or EMS-DNR order you previously executed with your physician.

The Divorce Auto-Revocation Rule

Arkansas law automatically revokes a spouse's designation as healthcare agent upon the filing of a divorce, annulment, or legal separation — unless the document explicitly states otherwise. If you're going through a separation, update your medical power of attorney immediately or risk having no valid agent during the interim.

Briefing Your Agent: The Conversation Most People Skip

Signing the form is the easy part. The hard part — and the step most families skip — is actually telling your agent what you want. The legal standard is "substituted judgment," meaning your agent must decide based on your values, not theirs.

Questions to cover in the briefing conversation:

• If you have a terminal diagnosis with less than six months to live, do you want aggressive treatment or comfort care?
• Under what conditions would you refuse mechanical ventilation?
• How do you feel about feeding tubes if you can no longer eat independently?
• Are there specific hospitals or care facilities you prefer or refuse?
• If your religious community's beliefs conflict with your medical preferences, which takes priority?
• Would you want to be kept alive if the only outcome is a permanent vegetative state?

Document the answers. An agent who has to guess under pressure — while your family argues in the ICU hallway — is exactly the crisis this process is supposed to prevent.

Common Mistakes That Invalidate the Document

1. Having your agent sign as a witness — immediately voids the entire document
2. Using only related witnesses — at least one must be unrelated and have no inheritance claim
3. Failing to distribute copies — the document only works if providers have it on file. Upload to your primary physician's office, hospital EHR (MyChart at UAMS or Baptist Health), and give copies to your agent
4. Not briefing your agent — an unprepared agent who doesn't understand your values creates exactly the crisis you tried to prevent

Rural Arkansas: The Access Problem

In many rural counties, the nearest notary public may be a 30-minute drive. Arkansas law doesn't require notarization — the two-witness option is equally valid. But finding witnesses who meet the strict disinterested criteria (unrelated by blood, marriage, or adoption and no estate claim) can be difficult in small communities where everyone is connected.

Practical solutions:

• Ask a neighbor, church member, or coworker with no family or financial ties
• Use a local bank employee (many banks offer free notary services anyway)
• Contact the Center for Arkansas Legal Services for free legal aid clinics that can help with execution

The key is planning ahead. Don't wait until a hospital admission to scramble for witnesses — the document is useless if you can't get it properly signed while you have capacity.

How the Medical Power of Attorney Differs From a POLST

Your healthcare agent appointment gives a person authority to make decisions. But during a 911 call, paramedics don't call your agent to ask permission — they follow medical orders. That's why you also need:

• A POLST form for broader treatment orders (must be signed by an MD/DO)
• An EMS-DNR order if you want to refuse resuscitation at home

Your healthcare agent can request and consent to these medical orders on your behalf if you've already lost capacity — another reason to appoint one early, before a health crisis.

Get It Done Right the First Time

The Arkansas Advance Directive & Living Will Kit includes the Appointment of Health Care Agent form with a built-in witness eligibility checklist, an agent briefing packet that walks you through the substituted judgment conversation, and a distribution log so nothing falls through the cracks. Complete the whole process from your kitchen table in under 30 minutes.

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