Power of Attorney & Living Wills

03 August 2020

Living wills and powers of attorney—the two most accepted types of advanced healthcare directives—are powerful, valuable legal instruments individuals can use to ensure that decisions about their affairs are handled in accord with their wishes if and when they are no longer able to make such decisions themselves. While they achieve some similar ends, the manners in which the two instruments function are distinctly different. The reality is that almost every US resident 18 or older will benefit from having completed at least one, but understanding the differences between them is important.

Living Wills

A living will is essentially a set of instructions for healthcare providers to follow if an individual loses the ability to give informed consent for treatment. These instructions can be very generalized (do not resuscitate orders are common example) or very specific (orders against intubation or G-tube insertion, for example). Living wills do not need to be exhaustive to be valid, but any wishes not specified as advanced directives are unlikely to be known or honored—living wills must be updated frequently in order to ensure they match the individual’s evolving beliefs.

Powers of Attorney

A medical power of attorney is, in some ways, the opposite of a living will. Rather than establish a set of instructions for use when the individual can longer give informed consent, they designate an agent to make decision on their behalf. Ideally, this agent is someone who knows the individual and understands their beliefs concerning treatment and dignity and will act with those beliefs in mind. Medical power of attorney limits the decision-making power of the agent to medical treatment, but financial and legal powers of attorney also exist and, in some cases, are appropriate to bestow alongside medical power of attorney.

It’s also important to note that there are two variety of power of attorney, and not all states allow for both. Traditionally, power of attorney ends when the grantor perishes or becomes incapacitated—though in instances of the latter, they may still benefit from the agent making decisions about treatment. In response, several states in the US allow for the establishment of durable powers of attorney. A durable power of attorney does not automatically expire upon the death or incapacitation of the grantor, potentially allowing them to continue to protect the grantor’s wishes about treatment.

Final Thoughts

Living wills and powers of attorney, as mentioned, both achieve the same broad goal: they make known an individual’s wishes for treatment when the individual is unable to do so themselves. But the differences in how that end is achieved make it worthwhile to explore (and probably implement) both where possible. Serious, unexpected injuries or illnesses can occur at any time to almost anyone—adults of almost all ages can benefit from having living wills and powers of attorney in place. There’s no such thing as too much protection when it comes to your beliefs, wishes, and dignity.