What is a Living Will and Healthcare Power of Attorney?

We have all heard stories about people who, because of a terrible accident, injury, or disease, become unable to make healthcare decisions for themselves. This is a tragic scenario because when unable to make these delicate decisions, they are often passed off to unknowing relatives, doctors, or sometimes even judges, who have no idea what your important personal preferences might be.

The truth is, the inability to make these decisions could happen suddenly, as in the event of an accident, or gradually, like when someone develops Alzheimer's or dementia, or another age-related illness. And it can happen to anyone.

So whether young or old, it is best to be prepared with a living will and a healthcare power of attorney to make sure that your wishes are followed.

Types of Healthcare Directives

There are two types of healthcare directives: a living will, and a durable power of attorney for healthcare. Healthcare directives are documents that let you specify your wishes about your healthcare, in the event that you can't speak for yourself. Both of these documents are important, and it is wise to prepare both. In some states, these two documents are combined into a single form called an advance directive.

Living Will

A living will is not the same as a conventional will or living trust that are used to leave property at death. It is simply a written document that has your statement about the type of health care that you want (or don't want) if you can no longer speak for yourself.

You can use your living will to say as much, or as little as you want about your healthcare preferences. It is up to you to decide the kind of care you would want, and to decide what you want to say about it in your living will.

Healthcare Power of Attorney 

A durable power of attorney for healthcare is another important document regarding your healthcare preferences. In this document, you simply choose and appoint someone that you trust to act as your healthcare agent in the event that you are incapacitated.

This person will make necessary health decisions for you, and will ensure that the doctors and other healthcare providers are carrying out the type of care you wish to receive.

Who Can Make Healthcare Documents?

You must be a legal adult to make a valid document directing your health care. You must also be of sound mind --meaning you are able to understand what the document means, what it contains, and how it works.

Lifespan of Healthcare Documents

When do my healthcare directives take effect?

Your living will and healthcare power of attorney will go into affect when a doctor has determined that you no longer have the capacity to make your own decisions. This happens when:

  • you are unable to understand what healthcare options are available to you, and what the consequences of these options are
  • you are unable to communicate (written, verbally, or with gestures) your wishes for care

What this all means is that if you can't express your health care wishes for any reason, your documents will spring immediately into effect. However, if there is any question about your ability to understand your treatment choices, or to communicate clearly, your doctor will work with your self-appointed healthcare agent to decide if it is time for your healthcare directives to go into effect.

It is important to remember that you will always be able to choose your own medical care if you have the ability to do so. Your healthcare directives will never override your communicated wishes. And even when you are no longer capable of making your own decisions, your healthcare agent must always act in your best interests and try to follow any wishes you've expressed in your living will.

When do my healthcare directives end?

Your written healthcare wishes remain effective as long as you are alive, unless you personally revoke them, or a court steps in to revoke them. Here are some specifics:

  • You revoke your documents: you can change or cancel your documents at any time, just be sure that your doctors and your healthcare agent is aware of the changes or cancelation
  • You get a divorce: A divorce doesn't change the written directions of your living will, however if you named your spouse as your healthcare agent in your power of attorney of healthcare, their rights will be revoked in most states, and you need to name a new agent. Sometimes it is easier to create new written documents to reflect your new agent rather than change existing ones.
  • You pass away: For the most part, your healthcare directives are no longer necessary after you pass away. The only reason they would remain effective for a limited time would be so your healthcare agent could oversee the disposition of your body, which could include an autopsy or organ donation.
  • A court invalidates your document or revokes your agent's authority: Most of the time, healthcare directives are not a matter for the court. However, if someone believes that did not have the mental capacity to create a valid legal document, the matter could be brought before a judge to decide. Your documents could also be invalidated if you failed to meet your state's requirements, such as notarizing in front of a witness. If someone believes that your healthcare agent is not acting in your best interest, the matter will be brought to court and an investigation into their behavior will follow. If their authority is revoked, the power will go to the first alternate agent that you have listed in your document. If you have not listed any, or if your document is invalidated, a conservator or guardian will be appointed to make care decisions for you.

If you or an aging loved one have not created your healthcare directives, take some time to think about your wishes for healthcare, and find a lawyer who can help you put them down into your formal documents. It is always best to be prepared.

If you need additional information, or would like to schedule a free in-home consultation to discuss your family's in-home care needs, contact us today at 1-844-505-0004. American In-Home Care refers qualified and compassionate care providers that can help with many services, including Companion Care, Personal Care, and Alzheimer's and Dementia Care.



Source: Irving, Shae "Living Wills and Power of Attorney for Healthcare: An Overview." Nolo.