A living will and a health care power of attorney are related documents that provide instructions on how to approach medical care once a person has become incapacitated.
A living will, also known as an advance directive, provides instructions on what to do in certain situations. Typical areas covered by a living will include whether or not to receive CPR, go on various forms of life support, or donate one’s organs. Ultimately, a living will can be as detailed as an individual wants it to be. The instructions in the living will only become operative once an individual becomes incapacitated.
A health care power of attorney is a document that can work either in conjunction with, or entirely in place of, a living will. A health care power of attorney appoints a person to make health care decisions for someone who has become incapacitated.
A health care power of attorney is broader than living will because the appointed person named in a health care power of attorney can make any health care decision rather than only deal with the specific scenarios listed in a living will. Without a health care power of attorney, if an unforeseen circumstance arises, an incapacitated person may be subjected to unwanted, unnecessary, or expensive tests and treatments by medical professionals acting out of an abundance of caution. A living will can still work with a health care power of attorney by binding the appointed person to follow specific instructions for certain situations.
While a living will and a health care power of attorney are important parts of any estate plan, these documents are critical for people who have been diagnosed with, or are predisposed to, any form of dementia. The drafting of these documents allow for still lucid individuals to provide instructions about the care they wish to receive and to appoint representatives they trust to make health care decisions.
When creating a living will or a health care power of attorney, individuals should work with an experienced, local elder law attorney to discuss the full range of options available and to draft documents that both meet their needs and are legally valid in the individual’s home state. State laws can vary significantly and documents valid in one state may not be valid in another state. Additionally, fill-in-the-blank forms may not actually be valid for their purported purpose due to state laws that have strict requirements for documents such as living wills and health care powers of attorney. Once these documents become necessary, it is too late to go back and correct a purported living will or health care power of attorney because the person who needs them has become incapacitated.
To discuss living wills, health care powers of attorney, and how they fit into your your estate plan, please call Martha C. Brown & Associates at (314) 962-0186.
