As previously discussed in another post, “The Estate Planning Four-Pack”, there are two documents often used in tandem to help plan for one’s medical treatment: the Living Will and the Healthcare Power of Attorney. Although both documents deal with medical decisions, there are some important differences you should know before drafting such documents.
The Living Will v. Health Care Power of Attorney
A Living Will directs your agent to enforce your wishes regarding the use of life-prolonging treatment if you are terminally ill and lack the capacity to make such a decision. A Living Will is a document which is generally limited to deathbed concerns only. A Living Will can direct your health care providers whether or not to provide nutrition and hydration when the principal is in a persistent vegetative state or in a terminal condition that could result in death within a reasonably short time. A Living Will can name an agent to revoke the declaration on the principal’s behalf. A Living Will can name an agent to enforce the declaration on the principal’s behalf. A Living Will cannot substitute for a Health Care Power of Attorney.
A Health Care Power of Attorney often picks up where a Living Will ends and is a much more expansive document. A Health Care Power of Attorney covers all health care decisions, and only activates if the principal is unable to make or participate in those decisions. In other words, the agent’s authority to act on the principal’s behalf is only activated by the principal’s inability to make decisions regarding their health care treatment. A Health Care Power of Attorney often allows the agent to have access to the principal’s protected medical records, to make various health care decisions for the principal when they are unable to, and allows for the agent to consent to organ donation on the principal’s behalf should the principal desire to do so.
Who Should You Chose as Your Agent?
You can chose separate agents for both documents, or the same agent, but regardless you should choose someone you trust. Just as it is important to carefully select your personal representative in your Last Will and Testament, your Living Will and/or Health Care Power of Attorney agent acts on your behalf in accordance with your wishes as outlined in these documents when you are unable to do so.
It is recommended that your estate plan be as comprehensive as possible, which includes planning methods to control medical treatment through the creation of a Living Will and Health Care Power of Attorney. If you would like to get more information on how these documents could assist you, please contact our team to set up a consultation.