Written By: Attorney Jeffrey A. Marshall, CELA*
The health care power of attorney and the living will are two important legal tools that can help you ensure that you retain some measure of control over the medical treatment you will receive in the event that you ever lack the competency to make treatment decisions for yourself.
A health-care power of attorney is a legally enforceable document in which you authorize another person to make health-care decisions when you cannot do so. The document must be prepared and signed while you are competent. You may state in the document both the types of treatment that you do not want as well as any treatment that you want to be sure that you receive. The document can give your agent the authority to make specific health-care decisions or the authority to make any and all health-care decisions you could make, if you were able. However, as long as you can make your own decisions, you, and not your agent, have the authority to make your own treatment decisions.
A living will is a written declaration directing your doctor and other health care providers to use, withhold or withdraw life-sustaining treatment if you are terminally ill and lack the capacity to make the decision. A living will directs your doctor’s actions when the use of life-sustaining treatment would serve only to postpone the moment of death or maintain you in a permanent unconscious state, but would not provide a cure for the condition. Under Pennsylvania’s living will statute you may appoint someone to make decisions regarding life sustaining treatment for you if you ever are incompetent and either terminally ill or permanently unconscious. This person is called a surrogate.
What is the difference between a health-care power of attorney and a living will?
The most significant difference is that the health-care power of attorney is more flexible. A living will comes into effect only when life-sustaining treatment may be used to postpone the moment of death or maintain you in a permanent unconscious state, but will not provide a cure for the underlying condition. In that circumstance, a living will allows you to direct that certain life-sustaining treatments be used, withheld or withdrawn. A health care power of attorney is not limited to terminal conditions but can be used to address all types of health-care decisions, including life-sustaining treatments. Both documents allow you to select someone else to make decisions for you when you are unable to do so, but with a living will that person can only act if you are terminally ill. A living will also forces you to predict the circumstances that will arise in the future and indicate your preferences long before you know what medical problems you may develop.
Should I have both documents?
Ideally your advance directive will include guidance as to the medical treatments you would want to refuse in specific situations, and will name a person to make decisions for you in other situations or if your intentions are not clear. You can set forth your desires on these related but separate issues in separate documents if you wish, but it is also possible for you to combine your living will instructions and health care power of attorney appointment in one document.
It makes sense to use only one document so that your doctor can find all of the relevant information in one place, and your health care agent will be fully aware of your specific instructions. Many experts suggest that the best document for most people is a health care power of attorney that also provides some instructions regarding the use of life sustaining treatment in the event of your terminal illness