A comprehensive estate plan includes documents like living wills and health care powers of attorney, allowing you to communicate your health care wishes. You may have heard about these documents but may not know the differences between the two, which best suits your situation, or if you should have both.
Both of these documents make provisions for your medical care and treatment if you become incapacitated and can’t communicate your wishes to your physician. If you don’t have the proper documents in place, your family members and attending physicians may not know what kind of treatment you would or wouldn’t want to receive.
This guide will cover what you need to know about creating a living will and a durable power of attorney for health care.
The Difference Between Living Will and Power of Attorney
A living will and a health care power of attorney, two types of health care advance directives, are legal documents for advanced care planning. Both living will and health care power of attorney cover situations where a patient reaches a mental or physical state where they can’t speak for themselves. The two work together, and legal experts recommend having both covers all bases.
A significant difference between a living will and a medical power of attorney is that the living will is your specific written instructions regarding medical care at the end of life. On the other hand, the medical power of attorney assigns someone to make decisions on your behalf based on what they think you’d want.
How Does a Living Will Work?
A living will is a legal form outlining your wishes for end-of-life care if you become incapacitated and can no longer communicate with doctors. This document can relieve family members from making hard choices on your behalf without knowing what you would have wanted.
Your living will can address the following:
- palliative care and pain management
- specific treatments and procedures
- medications you do or don’t want to receive
- religious or spiritual instructions on personal hygiene or modesty
These documents apply when you cannot make decisions for yourself, like if you’re nearing end-of-life, terminally ill, or seriously injured.
A living will can be revoked or amended at any time while you are competent. Although it takes effect as soon as you’ve signed it, doctors will only turn to the living will if you can’t communicate with them.
All 50 states require you to be 18 years old and of sound mind to create a living will. It’s also illegal for anyone to coerce you into signing a living will. In short, you must be able to understand and consent to the consequences of your living will to be able to execute one legally.
What’s a Health Care Power of Attorney?
A health care power of attorney, also called a medical power of attorney, is a document that gives the person you appoint the authority to make decisions about your health care and treatment if you can’t communicate with medical personnel.
Your agent must make decisions for you based on their knowledge of what you would have wanted, so it’s best to choose an agent who knows you well and your medical treatment preferences.
This type of directive only takes effect after you’ve been declared incapacitated, like if you fall into a coma. You can also revoke or change a medical power of attorney at any time while you still have the mental capacity.
>> MORE: What is a Durable Power of Attorney
Can You Have a Living Will and a Power of Attorney?
Yes, you can have both a living will and a power of attorney. Living wills and medical power of attorneys have similar benefits, but they function differently, so it’s a good idea to have both documents in place.
For instance, appointing a healthcare power of attorney gives a person you trust the legal ability to make medical decisions on your behalf. They must act according to your wishes, including documentation of your wishes in your living will.
With both of these documents in place, you know your wishes will be followed, and your agent can step in to make any decision not explicitly addressed in your living will.
What Happens if You Don’t Have a Living Will?
Not having a living will in place puts a lot of emotional and mental strain on spouses, children, or other loved ones during a difficult time.
Even if you’ve told your family members your preferences for certain medical treatments, there’s no guarantee they’ll carry out your wishes. They could remember incorrectly, not be the one making the decision, or even have conflicting personal or religious beliefs.
To complicate matters further, the family may not have the full legal authority to make all decisions on your end-of-life treatment without a living will in some states. If there’s disagreement among the family and no living will, it may lead to the court appointing a guardian.
Ultimately, it’s best to create a living will to avoid confusion over what kind of treatment and care you want.
Does a Power of Attorney Outweigh a Living Will?
No, your healthcare power of attorney doesn’t override your living will, in fact, your agent is required by law to follow the instructions in your living will. Remember that your agent will be responsible for making any decision that your living will doesn’t specifically cover.
Where Can I Get Living Will and Medical Power of Attorney Forms?
You can use our free medical power of attorney form or living will form to create a custom document. Our document builder helps take you through the process step-by-step so you can ensure your estate planning forms cover all aspects of your wishes.
In addition to the forms we provide, you can often find living wills and medical powers of attorney at local banks, hospitals, healthcare providers, or on state government websites.
As document names and laws on executing these documents may vary, be sure to check your state’s requirements.
