There is a lot of misunderstanding about living wills and health care powers of attorney. Even health care professionals can be confused. Here is my explanation of the major differences between these two forms of health care directive.

If you are medically competent you get to make health decisions for yourself. But a problem arises if you are not competent to make your own decisions. In that case, who decides, and what can you do to make sure the decisions will be consistent with your intentions?That is where advance health care directives come in.

Two notable advance health care directives are the health care power of attorney and the living will. You can use these documents to help ensure that you always get the kind of health care treatment you want even if you are unable to speak up for yourself.

What are the differences between these two documents? Do you need to have both?

What is a health care power of attorney?

A health-care power of attorney authorizes another person to make health-care decisions for you when you cannot make them yourself. The person you choose is called your health care agent.

The document must be signed by you while you are competent. In it you can describe the types of treatment that you would and would not want to receive at the end of your life. But you do not have to do so. The document can give your agent the authority to make any and all health-care decisions you could make, if you were competent. It is important to note that the health care power of authority is only stand-by authority. You will continue to make decisions for yourself as long as you can do so.

What is a living will?

A living will is a written declaration that instructs your doctor regarding the use, withholding or withdrawal of life-sustaining treatment if you are terminally ill and lack the capacity to make decisions. 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.

A living will applies only in the limited situation where you have an end-stage medical condition or are permanently unconscious. It is not relevant to other circumstances.

Under Pennsylvania’s living will statute you may appoint someone to make decisions regarding life sustaining treatment for you if you are ever both 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?

One significant difference is that the health-care power of attorney is much more broadly applicable. A living will comes into effect only when the issue is whether to use a life-sustaining treatment to postpone the moment of death or maintain you in a permanent unconscious state. In that limited circumstance, a living will gives instructions regarding life-sustaining treatments.

A health care power of attorney is not limited to terminal illness situations but can be used to address the broad range of health-care decisions that may arise whether you are terminally ill or not.

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 forces you to anticipate the circumstances that will arise in the future and give your instructions before you have knowledge of your specific medical situation. A health care power of attorney can provide for better informed decisions because it allows your agent to evaluate the specific situation that has arisen and make a decision based on the actual circumstances.

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 health care professionals can find all of the relevant information in one place, and your health care agent will be fully aware of your specific instructions. I 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.

I personally have just one document – a health care power of attorney. It gives my agent wide discretion in making decisions for me, including treatment at the end of my life. And I have talked to my agent and other family members about my philosophy towards end of life care. That communication is a key element in helping ensure that the appropriate decisions will be made for me.

Marshall, Parker & Weber is open and available to help you assess what documents you may need or whether your current plan is in good shape. Call us at 800-401-4552 to schedule an appointment. You can also check out our portal for complimentary blog articles, videos and webinars.
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