A comprehensive estate plan includes documents like living wills and medical powers of attorney, allowing you to communicate your health care wishes. You may have heard about these documents but may need to learn the differences between the two, which one best suits your situation, or if you should have both.
This guide will cover what you need to know about creating a living will and a medical power of attorney.
What Are the Documents for?
A living will and a medical power of attorney are both types of an advance directive, a general term for a legal document for advance healthcare planning. However, there are many key differences between the two forms.
What Is a Living Will?
A living will is a legal document in which you outline your end-of-life medical care wishes when you cannot communicate them due to a terminal illness. It spares your loved ones from making difficult decisions on your behalf without knowing your wishes by specifying your healthcare choices regarding palliative care, treatments, life-sustaining methods, and more.
What Is a Medical Power of Attorney?
A medical power of attorney is a document where you (the principal) appoint someone (the agent) to make healthcare decisions on your behalf whenever you cannot communicate. Your agent should know your preferences regarding various medical treatments so they can make decisions for you when you become incapacitated. You can modify or cancel a power of attorney as long as you are mentally capable.
4 Key Differences between a Living Will and a Medical Power of Attorney
A living will and a medical power of attorney pertain to healthcare decisions but serve different roles. Understanding the differences ensures your wishes are respected and properly executed.
Effective Timelines
A living will only come into effect when you are determined “terminally ill” or when your death is imminent, and you lack the capacity to make decisions regarding life-sustaining treatment. While the exact definition of “terminally ill” may vary by state and region, some common situations include:
- Severe injury;
- Terminal organ failure;
- Coma;
- Permanently unconscious;
- Persistent vegetative state.
On the other hand, a medical power of attorney is valid immediately upon signing. Nevertheless, the agent’s powers typically do not take effect until the principal becomes unable to make their own decisions. The principal still makes all decisions while capable, and the agent makes decisions only when the principal is unable to do so themselves, i.e., during temporary unconsciousness.
When your medical power of attorney takes effect also depends on your state law. In Colorado, for example, an agent’s powers are effective at the time of signing unless the principal explicitly states otherwise. Contrastly, in Washington and Georgia, the agent’s powers take effect only when the principal is declared incapacitated.
In addition, most states require the principal to be declared incapacitated in writing or orally by one or two licensed physicians for the principal’s powers of attorney to take effect.
What is incapacitation?
In healthcare planning, incapacitation (or incapacity) refers to a person’s inability to perform various functions and manage their personal care, property, or finances due to physical or mental limitations. It also indicates one’s inability to comprehend their actions when creating a will or other legal documents.
Standards of what can be deemed as incapacitation vary by state. Check your state law for the most accurate information.
Scope of Coverage
Because living will only comes into effect in end-of-life situations, they cover a limited scope of matters — mainly concerning your wishes about receiving (or not receiving) life-sustaining treatment, such as your willingness to:
- Be resuscitated by cardiopulmonary resuscitation (CPR) or a similar device;
- Sustain life with a mechanical ventilator;
- Accept tube feeding.
Medical powers of attorney are much more flexible than living wills and can cover all medical decisions. You can limit your healthcare agent’s power to tasks such as managing your medications with the pharmacy; in contrast, you can grant them complete authority and have them make major medical decisions for you, including:
- Surgery participation;
- Blood transfusion acceptance;
- Consent for experimental medical treatments.
Involvement of Parties
A living will declares what actions you wish your doctors and other medical professionals to take or not take when you are near death. In most states, there’s no need to designate a specific individual or agent to ensure these wishes are carried out; the responsibility generally falls to the treating medical team to respect and follow your wishes.
Treatment Refusal by Practitioners
Practitioners can decline to apply specific treatments if they deem them medically inappropriate (such as those that might be futile/useless or do not benefit the patient).
Conversely, a medical power of attorney involves the appointment of an agent to make healthcare decisions on your behalf and communicate them to your medical team should you become incapacitated. A medical power of attorney cannot be executed without the appointment of an agent.
Keep in mind that Your agent bears a fiduciary duty, meaning they are ethically obligated to act in your best interest when making decisions.
Alternate Agent
A principal can appoint one or more alternate agents in their power of attorney if the primary agent is unavailable.
Preparation Process
Preparing a living will is a deep and introspective process. It necessitates a thoughtful evaluation of various end-of-life scenarios to determine which treatments are acceptable and under what conditions you would forgo life-sustaining care. This process can become mentally challenging, requiring extensive research, personal reflection, and time to ensure the choices align with the individual’s values.
In contrast, preparing a medical power of attorney is more of a dialogue than a solitary contemplation. You must carefully select an agent and clearly communicate your healthcare preferences and the decision-making responsibilities bestowed on the agent. Such communication requires mutual understanding and trust, ensuring the agent can effectively represent the principal’s wishes and act in their best interest.
Can You Have Both a Living Will and a Power of Attorney?
Yes. Legal experts recommend having both to cover all bases to:
- Minimize family conflict. Clear directives can reduce potential disagreements among family members about treatment choices.
- Minimize emotional burden. Your loved ones can be assured they are honoring your wishes properly.
- Maximize legal strength. In some states, your family may not have the full legal authority to make all decisions on your end-of-life treatment without a living will. If there’s disagreement among the family and no living will, it may lead to the court appointing a guardian.
Can a power of attorney override a living will?
No, your healthcare power of attorney doesn’t override your living will. The two documents work hand in hand, and your agent is legally required to follow the instructions in your living will.
Planning Ahead
While living wills and medical powers of attorney are part of advance directives, they have distinct roles and applications. Understanding when they take effect, what they cover, who’s involved, and how to prepare them is crucial in planning for future health care.
