How do medical powers of attorney differ from living wills

Rachel Perdue Turner, Esquire

A proper estate plan includes the following legal documents: (1) Last Will and Testament; (2) Power of Attorney; (3) Medical Power of Attorney; and (4) Living Will. In my estate planning practice, clients frequently inquire into the distinctions between Medical Powers of Attorney and Living Wills. Since the distinctions between Medical Powers of Attorney and Living Wills are a frequent point of discussion, below I discuss these advanced health care directives' differences and similarities.

What is a Medical Power of Attorney?

A Medical Power of Attorney is an advanced health care directive that allows an individual (the "principal") to designate another individual (the "representative") to make health care decisions on the principal's behalf in the event the principal is unable to make such decisions for himself or herself. A Medical Power of Attorney provides the representative with specific instructions regarding the type of health care the principal would or would not like to receive. Medical Powers of Attorney are useful in medical situations where the principal is unable to direct his or her own health care, but is not terminally ill or in a vegetative state.

Why is a Medical Power of Attorney Important?

A Medical Power of Attorney allows a representative to handle the principal's medical affairs, without court intervention, when the principal becomes incapacitated. In the absence of a Medical Power of Attorney, no one can handle the principal's medical affairs unless a court finds the principal to be incapacitated and appoints a conservator and/or guardian to oversee the principal's affairs. Depending on the circumstances, conservatorship and/or guardianship proceedings can be expensive and lengthy. Moreover, the court may not select the individual to serve as the principal's conservator and/or guardian that the principal would have selected.

What is a Living Will?

A Living Will is an advanced health care directive in which an individual advises his or her physician how he or she wants to be treated if he or she is terminally ill or in a persistent vegetative state. For example, an individual could use a Living Will to advise his or her physician that he or she wants to avoid life-prolonging interventions, such as CPR, if he or she is terminally ill or in a persistent vegetative state.

Why is a Living Will Important?

A Living Will instructs an individual's physician as to how the individual should be treated in the event he or she is terminally ill or in a persistent vegetative state. Accordingly, a Living Will provides caregivers with peace of mind because it removes decisions regarding end-of-life care from the caregivers' hands.

Medical Power of Attorney vs. Living Will: At a Glance

Medical Power of Attorney

Living Will

A Medical Power of Attorney is applicable in medical situations where an individual is unable to direct his or her own health care, but is not terminally ill or in a vegetative state.

A Living Will is only applicable when an individual is terminally ill or in a persistent vegetative state AND unable to make health care decisions for himself or herself.

A Medical Power of Attorney allows an individual (the "principal") to designate another individual (the "representative") to make health care decisions on the principal's behalf in the event the principal is unable to do so.

A Living Will advises an individual's physician what medical treatment the individual does or does not want to receive in the event the individual is terminally ill or in a persistent vegetative state.

A representative under a Medical Power of Attorney may make any health care decisions for the principal that the principal could make for himself or herself if he or she was not incapacitated.

A Living Will is a "written record" of decisions that an individual has made with regard to his or her own health care.

A Medical Power of Attorney is only effective upon the principal's incapacity.

A Living Will is only effective upon an individual's incapacity.

Practical Considerations

Medical Powers of Attorney and Living Wills are revocable until the principal becomes incapacitated and loses the mental capacity to make decisions on his or her own behalf. At that point, Medical Powers of Attorney and Living Wills become irrevocable.

Medical Powers of Attorney and Livings Wills are of unlimited duration. Stated otherwise, there is no specific time period after which they become invalid.

At the principal's death, the representative's authority under a Medical Power of Attorney terminates.

A Living Will is not a DNR Order. A DNR Order provides that, in the event of a medical emergency, such as a heart attack, medical professionals may not attempt to revive an individual. A Living Will, however, is only effective when an individual is terminally ill or in a persistent vegetative state.

Conclusion

Medical Powers of Attorney and Living Wills should be part of any individual's estate plan. Individuals, however, who have a family history of dementia should be particularly cognizant of this fact and should execute such documents before they begin exhibiting signs of mental deterioration.

If you have any questions regarding this Article and/or would like to speak with the author regarding your estate plan, please contact Jenkins Fenstermaker, PLLC at (304) 523-2100.