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Living Wills and Healthcare Powers of Attorney Overview

By
James Parker
/
May 4, 2022
Last reviewed by
Boruch Burnham, Esq.
/
September 10, 2023

A last will and testament is a vital document that most people have already heard about. It may sound strange, then, to discuss a living will. Living wills are an example of a critical legal concept that some people may not know about.

A living will can be an invaluable tool for planning your ideal blueprint for end-of-life care. In this seven-point guide, you will learn the key points of what a living will is, how it can help you plan ahead, and the best time to write one.

1. A living will is not a last will and testament

A living will is a legal document that expresses the wishes or preferences of an individual concerning their healthcare and how they want to be treated medically in end-of-life situations. 

Also referred to as a “health care directive” or an “advance directive,” a living will is a legally binding document that directs your family members and your health care providers about the specific details of how you would like to be treated in case you become physically or mentally incapacitated such that you are unable to advocate for yourself.

2. A living will allows you to dictate a number of important decisions

A living will allows you to outline some substantial decisions in advance. This advance notice will become the legally binding guidelines that doctors and family members must abide by to the extent possible. However, there are restrictions and limitations to what can be legally binding in a living will. For example, one cannot request that a doctor end their life or remove a healthy organ to give to someone else if they had an accident which would only result in limited loss of mobility. 

One decision you can write down in your living will is whether you wish to be moved once you are incapacitated. Some people are okay with being moved from their home to a nursing home, hospice, or hospital if their health requires it. However, if you would be more comfortable passing away in your own home, your living will can stipulate that you would like to receive at-home care or be released from hospice to pass away on your terms.

Other uncomfortable but vital decisions can include when to administer medical care solely to ease your pain, known as palliative care, how long you wish to be kept on life support, and whether or not you would like to be given CPR. These important personal decisions can be preserved in your living will to be legally enforced.

3. Living wills can be simple or complex

You may think that a legal document like a living will require agonizing detail and complex rules, but this need not be the case. A living will may vary significantly in complexity. If you would prefer your end-of-life care to be dictated by a few broad rules with room for specific exceptions at the discretion of a trusted family member or doctor, that can be arranged.

Exact requirements vary by state as to what a living will must contain. In general, you are free to go into as much or as little detail as they would like concerning how their care should be handled. This allows you to get very specific for the circumstances under which you do or don’t want life-saving care as long as they are not unlawful.

For example, you may want to be resuscitated in most normal circumstances unless you are likely to lose the ability to move or your ability to think would be compromised. You can write your living will to contain a clause covering resuscitation when the consequences likely result in extreme disability.

4. Living wills are revocable 

You may feel like a living will is a legally binding document that cannot be changed once you write it. Many legal documents are irrevocable, meaning they may not be rescinded or even modified once executed absent extenuating circumstances such as fraud or mental incapacity. By contrast, a living will is fully revocable.

This means that as long as you can communicate your wishes and are not declared incapacitated, you can make changes to your living will or revoke it in its entirety.

5. You can also establish a power of attorney (POA) for healthcare decisions

Another form of advance directive is the medical power of attorney, also referred to as a “healthcare proxy.” In general, a power of attorney allows someone (the principal) to confer legal authority to another person (the agent) to make decisions on the principal’s behalf. In the context of healthcare decisions, a healthcare proxy will be able to exercise full authority over your medical affairs as though you were conducting them yourself. This can be an invaluable tool to ensure your care aligns with your wishes. 

For example, if you were religiously opposed to receiving blood transfusions but were not conscious due to an accident, your healthcare proxy could refuse the transfusion on your behalf. Note that there are some instances where a healthcare proxy’s decisions made per your wishes may not be granted by law on the grounds of public policy—such as making healthcare decisions that are against medically accepted guidelines or refusing life-saving treatments where you are suffering from a non-terminal condition.

6. You can place restrictions and limits in your healthcare POA

As a POA is a significant power to grant, you can establish limits on that power. If you are uncomfortable with granting someone a perpetual POA power of attorney, you have options that limit when and how t your agent can act under the authority conferred in your POA 

A durable medical power of attorney gives your agent standing power to make medical decisions on your behalf, and will remain in force until your death. By contrast, non-durable POAs are used for a set period, after which they expire. They are often used for short-term or specific medical situations, such as if you are about to undergo surgery and want a particular person to make decisions on your behalf if something goes wrong and you slip into a coma. 

Note that neither durable nor non-durable POAs override your personal authority to make your own decisions as long as you have the capacity to do so.  

Healthcare POAs are also often “springing,” which means they are triggered once certain conditions are met, such as if you become unconscious or incapacitated. 

7. An attorney with trusts & estates experience can help you draft and implement your living will or healthcare POA 

An experienced trusts & estates attorney can ensure that your living will meets all the requirements to be considered valid by the courts while also enshrining your wishes in clear, unmistakable language. If you plan on establishing a power of attorney, your trusts & estates attorney can also limit that individual’s powers to prevent abuse or overreach.

Through AAL, you can find a number of experienced trusts & estates attorneys who can advise you on the best way to preserve your l wishes by establishing a living will or durable power of attorney. 

 

*Disclaimer: Attorney At Law does not represent all lawyers in all states. There may be differences of opinion. It’s always advisable to consult with an attorney when in a legal situation.

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