A complete estate plan provides instructions in the event of incapacity during life as well as instructions on the distribution of the estate after death. Just as a will tells loved ones the decedent’s wishes after death, estate planning documents dealing with healthcare decisions can provide guidance during life when the decedent is unable to communicate those wishes.
Two of these lifetime planning documents, called advance directives, are a critical part of an estate plan because they provide loved ones guidance when the patient is unable to express them. Do people really need a living will or medical power of attorney? The answer is actually yes—to both.
Living Will or Medical Power of Attorney: Understanding the Difference
The documents to be included in a comprehensive estate plan depend on the circumstances of each case but often include these:
- A last will and testament;
- A power of attorney;
- A medical power of attorney; and
- A living will.
Determining whether you need a living will or medical power of attorney—or both—requires first understanding how each operates. Individuals creating or updating an estate plan should understand the difference between the different types of advanced health care directives. To help with that, this blog addresses the differences in authority and timing for using two types of advance medical directives, a living will and a medical power of attorney.
A Living Will Defined
A living will is an advance health care directive that communicates your wishes regarding medical treatment in the event you are too ill or otherwise unable to communicate that information and there is no hope for your recovery. Living wills may be used to name or eliminate certain treatment options, such as life-prolonging interventions like CPR. For example, medical care providers commonly rely on a patient’s living will in the event the patient is in a persistent vegetative state.
A living will takes effect only after you are unable to communicate your wishes and you are not expected to recover. It may also express your wishes on end-of-life matters, including religious preferences. Examples of wishes that may be included in a living will are whether the you would want to be resuscitated and whether you would agree to or refuse the use of life support.
A living will relieves loved ones of wondering what your end-of-life decisions would be when you can’t communicate your wishes yourself.
A Medical Power of Attorney Defined
A medical power of attorney is similar to a living will in that it indicates your medical treatment preferences, but it can cover more than just end-of-life matters. But a medical power of attorney differs from a living will in that it authorizes one or more individuals (representatives) to make decisions regarding your medical treatment. This type of advance directive becomes effective only if you are unable to make medical care decisions yourself due to incapacity ranging from temporary unconsciousness to temporary or permanent mental deficiency.
In the event of your incapacity, a medical power of attorney authorizes your representative to make decisions immediately. Without this advance directive, the authority to make medical decisions would require a court petition for conservatorship or guardianship to oversee your affairs These proceedings can be expensive and take time, and the court would not have the benefit of knowing who you would wish to serve as your conservator or guardian.
Living Will or Medical Power of Attorney: Which to Use When?
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Living Will |
Medical Power of Attorney |
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When is it effective? |
Effective only if the patient is in a permanent vegetative state or otherwise unconscious and there’s no realistic hope of recovery. |
Effective in the event of your temporary or permanent incapacity. |
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What it says? |
Communicates your wishes regarding medical treatment you do or do not want in the event of your permanent incapacity. |
Authorizes someone to make medical treatment and end-of-life decisions. May also communicate your wishes about specific types of treatments, such as dialysis or blood transfusions. |
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Does it name someone to authorize treatment? |
No. |
Yes, it authorizes one or more persons to make medical treatment and end-of-life treatment decisions. |
Other Factors to Consider Regarding Living Will and Medical Power of Attorney Options
As explained above, a living will and a medical power of attorney serve similar functions, but they are not interchangeable. Whereas a living will may indicate your wishes regarding terminal or end-of-life medical matters, it would not likely include your wishes regarding other medical matters, such as whether you would refuse a blood transfusion or dialysis.
A living will and medical power of attorney are both revocable, meaning you can revise or withdraw them in writing at any time before you become incapacitated. However, once you have become incapacitated or incompetent, any advance directive you executed becomes irrevocable.
It’s important to recognize that a living will is not a DNR order. A DNR order provides that medical professionals may not attempt to revive or resuscitate you in the event of a medical emergency. Even if your living will says you do not wish to be resuscitated, you would need a separate DNR order to make that wish effective.
How an Estate Planning Attorney in WV, KY, or OH Can Help with Your Living Will or Medical Power of Attorney
Whether you would be best served by a living will or medical power of attorney depends on your particular circumstances. For accurate answers to this and other estate planning questions, seek guidance from an experienced estate planning attorney in your area. Jenkins Fenstermaker, PLLC’s talented estate planning attorneys work closely with you to develop a comprehensive estate plan that suits your needs.
An experienced estate planning attorney should be part of any individual's estate plan. Whether you’re looking into a living will or medical power of attorney or have broader estate planning needs, Jenkins Fenstermaker can help. For a consultation with an estate planning attorney in WV, KY, or OH, call today at (304) 523-2100 or complete our online contact form.