Living Will vs. Power of Attorney for Healthcare

Lisa,

I read your column last week called “Estate Planning – Crash Course 101.”  Don't you also need a Living Will? I thought the Living Will dictates what you want done, and the Power of Attorney for Healthcare gives the authorization to carry out the provisions in the Living Will. Is this true?  - John

Dear John:  Good question, John. There is a significant deal of confusion in this area. The short answer to your question is “no.”   These two documents are independent of each other, and have different functions.   

In a Living Will (sometimes called a Declaration or a Directive), you are only able to express your desires regarding life prolonging procedures in the event you have a “terminal condition.” A terminal condition means an incurable and irreversible condition that will cause your imminent death, and the use of any death delaying procedure would only serve to prolong the dying process. Depending on the circumstances, death delaying procedures that could be withheld may include assisted ventilation, intravenous feeding or medication, and blood transfusions.

 This document is essentially a written instruction to your attending physician that he or she can rely on.  A Living Will does not apply if you have a non-terminal health issue. So if you are very ill, but not terminally ill, a Living Will won’t have any effect.  Note, however, that your attending physician still must provide treatment for your “comfort care” or alleviation of pain.

A Power of Attorney for Healthcare allows you to name a relative or friend (your “agent”) to make all health care decisions if you are sick and cannot express your desires - not just decisions related to death delaying procedures if you have a terminal condition. This document does not give any instructions to your attending physician. It would be your agent who instructs your doctor, for example, to withdraw nutrition and hydration if that is your wish as set forth in your Power of Attorney for Healthcare. You can be as specific or general as you want, and your agent must follow your wishes. 

Some people sign both a Living Will and Power of Attorney for Healthcare. If your agent is available, he or she will make your healthcare decisions. However, if your agent cannot be located or dies before you, a Living Will allows your attending physician to honor your wishes if you have a terminal condition.  But your doctor would have no power regarding life prolonging procedures if your condition was not terminal.  This is why it is important to name "back-up" agents in your Power of Attorney for Healthcare.  If the primary agent is unable to make your healthcare decisions, the back-up agent can make the decisions. 

If you would like to discuss Living Wills or the Power of Attorney for Healthcare, please feel free to contact me. I provide a one-hour consultation at no charge to you.

If any reader would like to ask me a legal question, post it on the Lake Zurich Patch website or send your question to me at lehmanlawoffices@aol.com. 

John, I appreciate your question and hope my answer clarified your understanding of how these two documents work.

My Best Regards,  Lisa

Disclaimer:  Please be aware that this column provides only legal advice of a general nature and it is not intended as legal advice for any person or group of persons. You must always consult with an attorney with respect to your particular legal situation.