What are Living Wills and Healthcare Power of Attorney?

As you become older, it’s important to create an advance health care directive, also known as a living will, in order to prepare for the unexpected. However, before you begin filling out forms, you need to understand living wills and healthcare Power of Attorney and how they differ from one another. The two are not the same, and it may be better to have both to guarantee you get the medical treatment you want.

If you have any questions concerning Living Wills, Durable Power of Attorney, or any other estate planning issues, please call our Tacoma estate planning attorneys at Jones Legacy Law. We make estate planning and living wills easy for you to understand so that you can make the best decision for you and your family.

What are Living Wills and Healthcare Power of Attorney? And What do they Cover?

Living wills and durable healthcare power of attorney are 2 key documents that enable you to express your desires for your medical treatment. It is wise to plan for both. In certain states, living wills and powers of attorney (POA) are combined into 1 document, which is often referred to as “advance directive” (both of these forms are actually types of health care directives, which allow you to express your health care preferences the moment that you are not able to express yourself.)

Physician Orders for Life-Sustaining Treatment (POLST) forms and Do-Not-Resuscitate (DNR) orders are two different types of health care documents that enable you to express your intentions in an emergency. These are often made by people who have a terminal condition or are nearing the end of their life.

Living Will

In your living will, which is also termed in some states as health care declaration, you say what type of medical care that you want and don’t want. These are instructions for people you leave behind and physicians to follow if you are no longer able to speak. You do not need to be a medical specialist to finish your document. However, it will help you get acquainted with the types of medical treatments regularly provided to very sick patients.

Medical Care to Prolong Life

Living wills in most states ask if you wish to accept life-prolonging procedures at the end of your life. These treatments usually include:

  • blood products and blood transfusions 
  • CPR (cardiac and pulmonary resuscitation)
  • diagnostic procedures
  • dialysis
  • drug administration
  • respirator use, and
  • Surgery.

Food and Water

When creating your health care documents, you may determine whether artificially administered water and food should be provided or withheld. Many people struggle with this decision. Remember that you will never be deprived of water and food if you want them so long as you retain the ability to express your wants.

Palliative Care

If you wish to die naturally—with no life-prolonging intervention—you do not have to abandon treatment to relieve pain or to keep yourself comfortable. This kind of care is also called “comfort care” but is now usually referred to as “palliative care.”

Instead of focusing on extending life or a cure, palliative care prioritizes dignity and quality of life by assisting a patient in remaining comfortable and pain-free until death happens naturally. Palliative care can be provided at home, in a hospice setting, or a hospital.

POLST Forms and DNR Orders

Some people, especially those who already are severely ill, may choose to draft a “DNR order” (do-not-resuscitate order) if they do not want to undergo life-prolonging care when they are near death. In the event of a medical emergency, this document informs emergency services that you don’t want to undergo CPR (cardiopulmonary resuscitation).

DNR orders are increasingly being incorporated into or being replaced by a larger set of medical orders known as Physicians Orders for Life-Sustaining Treatment forms (POLST forms) or something comparable in a growing number of states. POLST forms give instructions for healthcare workers on various life-prolonging procedures, such as antibiotic use, intubation, or feeding tubes, in addition to CPR instructions. 

While a POLST encompasses more medical scenarios than a DNR order, it is still meant for use in an emergency and it is not a replacement for a more comprehensive advance health care directive, living will, and medical power of attorney. 

Durable Health Care Power of Attorney (POA)

A durable healthcare power of attorney can be used to appoint someone (your healthcare agent) to manage your healthcare preferences and make any critical medical decisions on your behalf. Most people give their healthcare agents broad healthcare power to oversee their care.

Understanding this, most states’ power of attorney forms allow your agent the right to make all healthcare decisions on your behalf, unless you expressly limit that authority in the form. This ensures that your healthcare agent will usually be able to:

  • consent to or refuse consent to any medical treatment that will affect your mental or physical health (exceptions are usually made for extreme psychiatric treatments and pregnancy termination, and your healthcare agent is not allowed to authorize any action that will violate the wishes you have mentioned in your living will).
  • employ or fire medical professionals
  • decide on the best medical facilities for you
  • visit you in the hospital or other facilities even if other visitors are not allowed
  • have access to medical records and other personal information, and
  • obtain court approval if you are required to get or withhold medical treatment, or if a hospital or doctor refuses to fulfill your living will or the authority of your health care agent for whatever reason.

Body Disposition and Organ Donation

The bulk of your agent’s authority under a health care durable power of attorney will terminate on your death. However, in many states, you can grant your agent authority over your body’s disposal, including carrying out your wishes for organ donation or approving an autopsy. If you would like your agent to be granted these powers, you need to include them in your health care power of attorney.

Limiting the Authority of Your Health Care Agent

Be aware that your agent cannot overturn your wishes as long as you are able to understand and express them. Your agent will only step in if you are unable to manage by yourself.

Furthermore, as previously stated, you are free to limit your agent’s power in any manner you see fit. Some people, for example, grant their health care agent solely the ability to carry out their living will’s health care preferences and not make other medical choices for them.

Who Can Create Health Care Documents?

To create a valid document directing your health care, you must be of adult age (18 years for most states). You should also be of sound mind, which means you must be capable of understanding what the document is all about, what it includes, as well as how it works.

When Do Your Health Care Documents Become Effective?

If your doctor finds that you no longer have the ability—usually referred to as “capacity”—to make health care decisions on your own, your health care documents will take effect. In most cases, incapacity means:

  • You are unable to understand the nature and implications of the available healthcare options, and
  • You no longer have the ability to express your own care preferences in writing, orally, or via gestures.

The practical implication of this is that your documents will take effect right away if you become so seriously sick or injured and you are unable to communicate your preferences in medical treatment. Suppose there is any doubt about your capacity to understand the treatment options and express them clearly. In that case, your doctor will determine (with the help of your agent or your close relatives) whether it is time for your healthcare documents to become effective.

In certain states, you may delegate power to your healthcare agent to oversee your medical treatment immediately. Setting your document to be effective immediately doesn’t give your healthcare agent the right to overrule your treatment preferences. You will always be able to direct your own medical care if you have the capacity to do so. 

Even if you no longer have the ability to make your own decisions, your health care agent should always work in your best interests and make every effort to carry out whatever health care preferences you have stated in your living will.

When Does Your Health Care Document End?

Unless you expressly revoke your documents or a probate court steps in (this is very rare), your written instructions for health care remain in force as long as you are alive. Here are some details on when your health care documents will no longer be valid:

  • You revoke your document. A health care document can be changed or revoked at any time. The specifics of how you can cancel your document vary by state. In certain states, you may destroy the document physically, notify your health care provider, or create a new one. Nonetheless, notify your health care providers as well as your agent that you have revoked the document and that it is no longer in existence.
  • Your document is declared invalid by a court of law. Most judges agree that a courtroom is not the best place to make health care decisions. Nevertheless, if your health care is in dispute and someone contests the legality of your health care directives, the case may be heard by a court. 

For example, if someone questions whether you have the mental ability to draft a health care document, that person might petition a court to declare your document invalid. Such lawsuits are uncommon, although they do arise on occasion. The individual who disputes the document’s validity can prove that you were not of sound mind when you created it. (This means that the law assumes you were of sound mind when you created your health care directives.)

  • The authority of your agent is revoked by a court. If, after your health care papers take effect, someone suspects that your health care agent is not operating in accordance with your preferences or in your best interests, that person may go to court and request that your agent’s actions be investigated. 

If a court determines that your agent is behaving inappropriately and revokes his or her authority, the assignment will be given to an alternative agent listed in your document first. If no alternate is available, or if the court invalidates your whole document for one of the reasons mentioned above, a guardian or conservator will be appointed to make health care decisions on your behalf.

  • You get divorced. Divorce has no bearing on your written health-care directives (your health care declaration). However, if you appointed your spouse as your health care agent, in some states that power is taken away automatically. If you designated an alternate agent, that individual would take over. Even if you specified an alternative agent, it’s a good idea to create new paperwork if you get divorced.
  • After your death. When you die, your health care records are often no longer required. However, in certain states, your health care directives continue to be valid after your death for very limited reasons. Unless you explicitly withheld these rights when you created your health care agreements, your agent may be allowed to oversee the disposal of your remains, including ordering an autopsy or an organ donation.

Tacoma Estate Planning Attorneys

Estate planning does not come in one size fits all. Even if you’re lucky enough to find an online form that effectively expresses your wishes, you never know how it may interact (or conflict) with the other parts of your estate plan.

Enlisting the help of a Tacoma, Washington legal counsel is the best way to ensure that your goals are carried out. Jones Legacy Law has helped many Tacoma, Washington residents in creating an estate plan that achieves their objectives. 

We can also discuss in-depth what are living wills and healthcare power of attorney. Give us a call now to make an appointment for a FREE consultation!

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