What are”Living Wills” and “Health Care Powers of Attorney”?

Health Care Powers of Attorney and Living Wills are documents that allow you to choose how medical decisions will be made in the event you became unable to make these decisions personally. The need may arise because an older person’s health declines or because a younger person is in a serious accident. Not having these documents when you need them can cause needless expenditure of time and money for your family. Keep in mind that a Health Care Power of Attorney is different than a general Power of Attorney; the latter concerns financial matters and will be discussed in a later column.

A “Health Care Power of Attorney” appoints someone to make medical decisions only in the event you cannot make or communicate those decisions yourself. The person you appoint, called your “health care agent,” is usually a family member or trusted friend.

Why are Health Care Powers of Attorney important? When the patient cannot make medical decisions, some doctors simply ask the closest family member his or her preference, and act on it. However, some doctors will not do this. Those doctors want the protection of legal paperwork, and say that they will not act unless and until they are given a Health Care Power of Attorney or a court order. Obviously, going to get a court guardianship order to discontinue life support or to start or stop some treatment is not what a family wants to do when a loved one is critically ill. This type of court action is also very expensive. When a family wants life support discontinued, there is another financial toll, because while waiting for the court order, the patient’s estate can be depleted by thousands of dollars each day in intensive care charges.

A “Living Will” can be included in a Health Care Power of Attorney, or can be done on its own. A Living Will instructs medical providers about care, especially about whether to provide extraordinary measures like artificial respiration. A Living Will is ideal when a person feels very strongly about not wanting extraordinary measures to keep them alive in the event of terminal illness, permanent coma, severe dementia, or a persistent vegetative state. Some clients prefer to make this instruction in a Living Will so that their family will not have the burden of deciding. However, not every person feels strongly about extraordinary measures. Some feel that the best decision depends on the circumstances, and prefer to leave the decision to their appointed agent. Those persons would not want to do a Living Will, but would instead want to discuss their general preferences with the person appointed in their Health Care Power of Attorney.

Because decisions may be necessary on topics not covered by a Living Will, I recommend that clients include Living Will provisions within a Health Care Power of Attorney, instead of doing only a Living Will. By including the Living Will within the Health Care Power of Attorney, someone will be appointed to make decisions that are not covered by the Living Will if the need arises.

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