Klenk Law

Living Will and Medical POA

The Difference Between a Living Will and the Durable Healthcare Power of Attorney

Both Living Wills and Durable Healthcare Powers of Attorney address decisions regarding your healthcare. The Living Will states your specific wishes with regards to removing medical care if your doctor believes there is no chance for your recovery. A Durable Healthcare Power of Attorney (sometimes called a Health Care Proxy) compliments the Living Will. The Durable Healthcare Power of Attorney gives someone else the power to make any and all health care decisions, including carrying out the wishes you have addressed in your Living Will when you are not able to make those decisions.

Who Should Have a Living Will and Medical Power of Attorney?

Every person who has reached the age 18 should have a Medical Power of Attorney and Living Will.

How Do I Set up a Living Will?

A Living Will requires lots of thought. Selecting the wrong person as Surrogate can mean your wishes are not respected, and conflicts can arise within the family. An experienced Estate Planning Attorney will brainstorm with you about your decisions.

Do I Need an Estate Planning Attorney to Draft a Living Will and Healthcare POA?

It is not a legal requirement that an attorney draft the Living Will, but it normally is part of “The Big Three” documents, which includes a Living Will/Medical Care Proxy. The three documents are essential, and it is wise to have an experienced Estate Planning Lawyer draft these documents. These are technical documents used during stressful times; you want to avoid time-consuming questions and expensive disputes.

What Should Be in a Health Care Power of Attorney and Living Will?

Your health care is your business, and you have the right to make your health care decisions as long as you are capable. In today’s world of modern medicine, you may quickly need medical decisions long after you are no longer competent and capable of communicating with your health care provider. These situations can arise quickly, the result of an accident or unexpected illness, leaving decisions such as what doctor should care for you, what treatment protocol to follow and what medical care should be refused up to someone else. These can be tough decisions, and it is important to you that the person making them represents your wishes, and it is important to the person on whose shoulders you place this burden to know what actions you want them to take. By completing a Health Care Power of Attorney and Living Will, you can voice your wishes, select the person who will speak for you, but also give that person guidance to make these challenging and personal decisions. A properly drafted Health Care Power of Attorney and Living Will should:

  1. Appoint a person who can make health care decisions for you if you are ever unable to make them yourself;
  2. Give that person the power under HIPPA to review your medical records and to gather information from your medical team;
  3. Give your Surrogate guidance as to what your wishes are for medical care; and
  4. Give your Surrogate the power to agree with your physician to stop providing you medical care if you are in a persistent vegetative state or a terminal condition.

Also, you may choose to address other issues, such as designating your Surrogate to have the power to donate your organs. Not every person is able or willing to serve as a medical proxy and the decisions made might mean turning off your life support, so communication to your Medical Agent about your wishes and ideas on life support is a vital step in your estate plan. Without your guidance, there could be disagreements among your family and friends as to who should be making decisions and what you wished.

More FAQs About Living Wills and Medical Powers of Attorney:

Can I have both a Living Will and a Healthcare Power of Attorney?

Typically you will have both. Many states combine the two documents into one. The Living Will is focused on deathbed concerns, while the Power of Attorney allows your Surrogate to address a multitude of medical issues if you are unable to act.

Who should I pick as my Medical Power of Attorney?

This person might not be the same individual you select to handle your financial affairs or serve as your executor. Some people are excellent with numbers but terrible in the hospital. Further, this person should make the decision you would make, not the decision that they think is right. This person might also have to negotiate complex family relationships. Be realistic about your candidates’ strengths and weaknesses.

Do I have to pick my spouse as my Health Care Agent?

No. If your spouse is unable to act under pressure or will not respect your wishes, consider someone else.

Should I give my health care agent a copy of the Living Will?

Yes. This decision may arise at 3:00 a.m. Your Agent should have a copy so they can prove to your acting doctor that they have the authority to act on your behalf.

What is another name for a Living Will?

A Living Will is often included in a Medical Power of Attorney. The Living Will states your specific wishes with regards to removing medical care if your doctor believes there is no chance for your recovery. This is sometimes referred to as an Advanced Medical Directive or Advanced Healthcare Directive. This is complimented with the Durable Healthcare Power of Attorney which gives someone else the power to make any and all health care decisions, including carrying out the wishes you have addressed in your Living Will if you are not able to make those decisions.

What is a health care proxy?

A Health Care Proxy is another word for Medical Power of Attorney. A Health Care Proxy/Durable Healthcare Power of Attorney gives someone else the power to make any and all health care decisions, including carrying out the wishes you have addressed in your Living Will if you are not able to make those decisions.

What is an advanced healthcare directive?

An Advanced Healthcare Directive is another name for a Living Will. The Advanced Healthcare Directive/Living Will states your specific wishes with regards to removing medical care if your doctor believes there is no chance for your recovery. This is complimented with the Durable Healthcare Power of Attorney (sometimes called a Health Care Proxy) which gives someone else the power to make any and all health care decisions, including carrying out the wishes you have addressed in your Living Will if you are not able to make those decisions.

What is a DNR order?

A DNR or Do-Not-Resuscitate Order is authorized either by the patient or the patient’s Surrogate through a Living Will and Medical Power of Attorney. The DNR is the doctor’s order to the staff instructing them not to use heroic measures, such as CPR or respirator if the patient stops breathing.

What is the difference between a Living Will and a DNR?

A patient can authorize a DNR without a Living Will. The DNR is a medical order refusing the use of medical equipment or CPR should the patient stop breathing or the patient’s heart stops beating. The Living Will or Health Care Proxy is the patient’s written instructions regarding medical care.

What is HIPAA?

HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. This legislation addressed patient data privacy. HIPPA Authorization can be included in a Living Will or Medical Power of Attorney allowing the Surrogate or Medical Agent access to private medical data.

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If you have any questions about Living Wills or the Durable Power of Attorney and any other estate planning topics, please contact our office to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate planning techniques clearly and concisely. We make it easy for you to understand Living Wills and Estate Planning so you can make the best decisions for yourself and your family.

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