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 a Possible Future Incapacity

We all hope to live a long fulfilled life.  That picture usually includes living in the home of our choice and making all of our decisions.  However with modern medicine prolonging life spans, more and more people are finding themselves needing care at the end of their life.

This care can be as simple as someone coming in to clean the house, help with household chores and fix a few meals.  The other extreme is the need for skilled nursing and living in a nursing home with 24 hour care.  There are many levels of care between the two.

Who is responsible for this care?  Who decides what will be done and when?  From a legal standpoint, as long as you can make decisions for yourself you decide.  Furthermore, you can decide who will step in when you are no longer able to make the decisions for yourself.

The state has guidelines that include a priority list for who should make your decisions.  Your spouse is first followed by your next of kin.  If you have children, they have equal priority because their relationship to you is the same.  However, there are two ways you can control who is considered for your care.

First, a durable (financial) power of attorney and a medical power of attorney will allow someone to step in immediately to care for you temporarily or permanently.  Second, a declaration of guardian in advance of need will provide the court with your priority order.  This declaration is used if a guardianship proceeding becomes necessary.  A guardianship proceeding would appoint someone to care for you and remove some or all of your legal rights.

This declaration allows you to specify who you want to be appointed your guardian if you become incapacitated and need one.  It also allows you to specify individuals who should not be considered.  You can have control of your future with these simple documents.

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.