Healthcare Directives in Minnesota: Living Wills, Healthcare Agents, and Your Rights

A healthcare directive is a legal document that allows a person to communicate their medical treatment preferences and designate a trusted individual to make healthcare decisions on their behalf when they are unable to do so. In Minnesota, healthcare directives are governed by Minn. Stat. Section 145C, the Minnesota Health Care Directive Act.

Unlike many other states that require separate documents for a living will and a healthcare power of attorney, Minnesota combines both functions into a single healthcare directive. This streamlined approach simplifies the process and reduces the risk of conflicting instructions between multiple documents.

A healthcare directive is a critical component of every estate plan. Without one, family members may face agonizing decisions without guidance, and healthcare providers may be required to administer treatments that the patient would not have wanted.

What a Healthcare Directive Covers

A Minnesota healthcare directive can address two distinct but related functions: instructing healthcare providers about the person’s treatment preferences (the living will component) and appointing a healthcare agent to make decisions when the person cannot (the healthcare proxy component). A person may include one or both components in their directive.

The Living Will Component

The living will portion of a healthcare directive allows a person to document specific instructions about medical treatments they do or do not want under certain circumstances. Common provisions address:

• Life-sustaining treatment. Whether the person wants ventilators, feeding tubes, dialysis, or other interventions if they are terminally ill, permanently unconscious, or in an irreversible condition.
• Pain management. Preferences regarding comfort care, palliative sedation, and pain medication, even if such measures might hasten death.
• Artificial nutrition and hydration. Whether the person wants tube feeding and intravenous fluids if they cannot eat or drink on their own.
• Organ and tissue donation. The person’s wishes regarding donation after death.

These instructions provide guidance to both the healthcare agent and the medical team. They are especially valuable when the healthcare agent is uncertain about what the person would have wanted in a particular situation.

The Healthcare Agent Component

The healthcare agent (sometimes called a healthcare proxy or surrogate) is the person authorized to make medical decisions on the principal’s behalf. Under Minn. Stat. Section 145C.05, the healthcare agent has authority to:

• Consent to or refuse medical treatment, including life-sustaining treatment
• Access medical records and consult with healthcare providers
• Make decisions about hospitalization, surgery, and medication
• Arrange for care in a hospital, nursing facility, or at home
• Make decisions about organ donation and disposition of remains

The healthcare agent’s authority activates only when the principal’s attending physician determines that the principal lacks the ability to make or communicate healthcare decisions. Until that point, the principal retains full decision-making authority.

Who Can Create a Healthcare Directive

Any competent adult, meaning a person who is at least 18 years old and has the capacity to understand the nature and consequences of the document, may create a healthcare directive. Mental capacity at the time of execution is essential. A directive created by a person who lacks capacity may be challenged and invalidated.

Witnessing and Execution Requirements

Minnesota law imposes specific requirements for the valid execution of a healthcare directive under Minn. Stat. Section 145C.03:

• The directive must be in writing and signed by the principal (or by another person at the principal’s direction, in the principal’s presence).
• The directive must be witnessed by two adults or acknowledged before a notary public.
• A witness may not be the appointed healthcare agent.
• At least one witness must not be a healthcare provider or an employee of a healthcare provider currently involved in the principal’s care.

These requirements exist to protect against fraud and undue influence. While the statute does not require notarization if two witnesses are present, many attorneys recommend both witnessing and notarization to maximize acceptance across institutions and state lines.

Choosing a Healthcare Agent

Selecting the right healthcare agent is one of the most important decisions in the process. The agent should understand the principal’s values and be prepared to make decisions reflecting those values rather than their own preferences. They should be able to handle difficult conversations under pressure, be reasonably accessible to respond to medical situations, and be willing to accept the emotional weight of the role. Principals should also name one or more successor agents in case the primary agent is unable or unwilling to serve when needed.

POLST: Provider Orders for Life-Sustaining Treatment

A POLST form (Provider Orders for Life-Sustaining Treatment) is a medical order, distinct from a healthcare directive, that translates a patient’s treatment preferences into specific medical orders. In Minnesota, POLST forms are typically used for individuals who:

• Have a serious, life-limiting illness
• Are residents of long-term care facilities
• Want to ensure that emergency medical personnel follow specific instructions

The key distinction is that a healthcare directive is a legal document created by the individual, while a POLST is a medical order signed by a physician based on a conversation with the patient. Emergency medical technicians and paramedics are trained to follow POLST orders but may not have access to or be able to interpret a healthcare directive during an emergency.

A healthcare directive and a POLST can and often should work together. The directive provides the legal framework and the broad expression of values, while the POLST translates those values into actionable medical orders for emergency and acute care settings.

DNR Orders

A Do Not Resuscitate (DNR) order instructs medical personnel not to perform cardiopulmonary resuscitation (CPR) if the patient’s heart stops or they stop breathing. In Minnesota, a DNR order must be signed by the patient’s physician and is typically documented in the patient’s medical record.

A healthcare directive can express a preference regarding resuscitation, but a separate DNR order is usually needed to ensure that preference is carried out in clinical settings. The healthcare agent can authorize a DNR order if the principal’s directive grants that authority and the principal is unable to make the decision themselves.

Mental Health Directives

Minnesota law also allows individuals to create mental health directives, sometimes called psychiatric advance directives. Governed by Minn. Stat. Section 253B.03, subd. 6d, a mental health directive allows a person to document preferences regarding psychiatric medications, electroconvulsive therapy, preferred treatment facilities, and crisis situations, as well as designate a mental health agent. This is particularly valuable for individuals with conditions such as bipolar disorder or schizophrenia, where periods of incapacity may be episodic.

Relationship to Financial Power of Attorney

A healthcare directive and a financial power of attorney are separate documents with distinct functions. The healthcare directive governs medical decisions. The financial power of attorney governs the management of the principal’s financial affairs, including paying bills, managing investments, and handling real estate.

While the same trusted person can be named as both healthcare agent and financial agent, the authority must be granted in two separate documents. Naming the same individual in both roles promotes coordinated decision-making. For example, if a person is incapacitated for an extended period, the financial agent can ensure that medical bills are paid while the healthcare agent directs treatment.

Both documents should be part of a comprehensive estate plan that also includes a will or trust, updated beneficiary designations, and, where appropriate, additional planning for long-term care, tax minimization, and asset protection.

Storing, Revoking, and Updating a Healthcare Directive

A healthcare directive is only useful if the people who need it can find it. Copies should be provided to the named healthcare agent, successor agents, primary care physician, and any hospital or long-term care facility where the person receives care. A copy should also be kept at home in an accessible location. Minnesota does not maintain a centralized registry, so the responsibility for distribution rests with the principal.

A principal may revoke a healthcare directive at any time, provided they have the mental capacity to do so. Revocation can be accomplished by executing a new directive (which automatically revokes any prior one), destroying the document, signing a written revocation, or communicating revocation orally to the healthcare agent or attending physician. After revoking a directive, the principal should make reasonable efforts to retrieve and destroy all copies to avoid confusion.

When No Healthcare Directive Exists

If a person has not executed a healthcare directive and becomes unable to make medical decisions, the court may need to appoint a guardian to make healthcare decisions. Minnesota law also provides a statutory framework for identifying a surrogate decision-maker. Under Minn. Stat. Section 145C.07, healthcare providers may look to family members in a defined priority order (spouse, adult children, parents, siblings) to make decisions.

However, this default process can lead to disagreement among family members, delays in treatment, and outcomes that may not reflect the patient’s wishes. Creating a healthcare directive while healthy and competent is far preferable to relying on statutory defaults during a crisis.

The Importance of Conversations

A healthcare directive is most effective when it is supported by conversations with the healthcare agent, family members, and physicians. The document itself cannot anticipate every possible medical scenario. An agent who has discussed the principal’s values, fears, and priorities in depth is better equipped to make decisions that the principal would endorse.

These conversations should be ongoing, not one-time events. As health circumstances, family dynamics, and personal values evolve, the directive and the understanding behind it should evolve as well. See our guide on when to update your estate plan for specific triggers. An overview of the broader legal framework for estate planning in Minnesota provides additional context for integrating healthcare directives into a comprehensive plan.