Know the Difference Between Your Medical Power of Attorney and Living Will

I am often asked — what is the difference between a Medical Power of Attorney and Living Will? There are several differences between these two documents, but the primary difference lies in the scenario where each is used.

A medical power of attorney allows a trusted friend or family member to act on your behalf regarding your medical decisions. This only arises in situations where you are unable to make medical decisions for yourself. Medical powers of attorney can be used by your family members or friends even when you are not considered near death. Your medical power of attorney should include language compliant with HIPAA and gives the person named the right to speak to your doctors about your health, access to your medical records, the right to consent to treatment on your behalf, and the right to determine your course of treatment.

A living will only comes into play under very limited end of life circumstances. If a doctor determines your condition is terminal or irreversible, the living will becomes the decision making document. The living will is an expression of your desire to have life support removed so that you may go gently or continued and all possible measures continued. The purpose of a living will is to ensure that your wishes are honored during this phase of life even if you are no longer able to express your wishes.

In summary, powers of attorney can be used by an agent at all times, whereas a living will only involves your end of life decisions.

Planning for Non-Traditional Families

While the need for proper estate planning is the same for both traditional and non-traditional families, some of the planning techniques used are different.  Same sex couples are not treated the same as traditional married couples for many purposes and while these differences in treatment present challenges, they are not insurmountable with proper planning.

Same sex couples, just like opposite sex couples, must have the four key documents.  The four documents include a will, a medical power of attorney, a durable power of attorney and a living will.  These documents are the foundation of any estate plan, whether for traditional or non-traditional families.

Non-traditional families must pay special attention to several key areas.  Who will make decisions for you if you are unable?  What are the tax implications of transfers now and at death?  When can beneficiary statements solve the problem?  Each of these questions is touched on below and will be covered in depth in a future blog post.

What can same sex or unmarried couples do if they want their partners, instead of their biological relatives, to make decisions on their behalf? This question frequently arises during medical emergencies.  Preparing before the emergency strikes will arm your partner or the person of your choosing with the tools necessary to ensure your wishes are honored.  A variety of planning techniques are available to meet the needs of your family.

Same sex and unmarried couples are treated differently for tax purposes.  They are not eligible for the marital deduction at the death of their partner.  They have no community property rights.  There is no tax protection for property transfers during life between partners.  There are planning tools available to help overcome these hurdles.

Finally, the importance of beneficiary designations cannot be stressed enough.  Properly completed beneficiary statements in various financial documents, including life insurance policies and retirement plans can aid in property transfer at death.  Beneficiary designations are critical and should be considered in conjunction with the entire estate plan.

Same sex and unmarried couples need to work with an attorney to develop an estate plan that anticipates challenges and delivers the intended results: to honor their relationship with their partner, ensure their partner can make decisions on their behalf if necessary, and to designate their intended beneficiaries.

What is a Living Will?

Directive to Physicians is the legal name for the document known as a living will.  This legal name is appropriate because the purpose of a living will is to provide direction to medical professionals and loved ones on the type of care you wish at the end of your life. A list of specific procedures that should or should not be performed can be included. A person can be named to make decisions for you if you are unable to make decisions for yourself.

This document works hand in hand with your medical power of attorney.  The medical power of attorney is effective until a doctor’s decision about your condition triggers the living will into power. A living will only becomes effective if a doctor determines you have a terminal condition with less than six months to live or an irreversible condition.

This document is important because it addresses medical decisions specific to end of life choices and serves a different purpose than a medical power of attorney.  Many people will make different decisions if their life expectancy is short.  A living will allows you to provide clear direction about your treatment decisions even if you are unable to voice them. Additionally, some people feel the person that is best suited to make day to day medical decisions is not the best person for end of life decisions.  In this instance one person is named as decision maker in the medical power of attorney and a different person is named in the living will.

Four Documents Every Estate Plan Needs

The four documents that create the foundation of a good estate plan are a willmedical power of attorneydurable (financial) power of attorney and a living will.  Each of these documents provides protection for specific issues associated with death or incapacity.

A will details your wishes after you pass away. A will allows for a smooth transition for the loved ones you leave behind.  It will designate someone to take control of your estate, care for your dependents, distribute your property and make the transition as painless for your loved ones as possible.

A medical power of attorney appoints a person to make medical decisions if you are unable. A medical power of attorney can also include a list of specific procedures you do or do not want allowed.

A durable (financial) power of attorney appoints a person to make financial decisions if you are unable. This is a flexible document that can be used to give limited or unlimited power over your financial affairs.  It can become effective immediately or only if the named individual becomes incapacitated.

A living will express your wishes for end of life decisions and can appoint a person to make decisions if you are unable.  This document differs from a medical power of attorney because it is only effective if a doctor has determined you have a terminal or irreversible condition.

The requirements relating to the validity of each of these documents are found in state law.  As a result, an attorney should be consulted to ensure your documents are valid in your state of residence.  If you have a job that requires you to relocate regularly a trip to a local attorney should be on your to do list any time you move.