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The difference between a living will and power of attorney

NAELA National Academy of Elder Law Attorneys, Inc. MEMBER

As your get older, it is important to establish an advance health care directive, or living will, for yourself to prepare for the unexpected. However, before you start filling out forms, you need to understand what a living will entails and how it differs from a health care power of attorney. They are not the same, and it may be best to have both to ensure you receive the medical treatment you desire.

Living will

A living will is also known as a health care or instruction directive. It is separate from the will that determines the inheritance of your assets. It focuses on your preferences concerning medical treatment if you develop a terminal illness or injury, such as a brain tumor, Alzheimer's disease or head trauma that causes you to lose brain activity. Medical care in a living will may include instructions for the following:

  • Tube feeding
  • Assisted breathing
  • Resuscitation
  • Other life-prolonging procedures

It may also outline your religious or philosophical beliefs and how you would like your life to end. A living will is only valid if you are unable to communicate your wishes.

Health care power of attorney

A health care power of attorney gives someone else (the proxy) the ability to make decisions for you regarding your health care. Unlike a living will, it applies to both end-of-life treatment as well as other areas of medical care. However, like a living will, the proxy only has power to act on your behalf when you are unable to do so yourself, whether from loss of consciousness or mental ability. Medical professionals will determine if you are capable.

The benefits of advance health care directives

You may decide to have both a power of attorney and a living will, called a combined advance directive for health care. Whether you go with one or both, you receive similar benefits. You prevent the matter from having to go to court, where a judge who does not know you would determine what your care would be. Your family and medical providers will know that they are following what you want for your life, and you will have peace of mind as well.

To ensure you obtain these benefits, you should create your health care directive with the help of an estate planning attorney, particularly one with experience in elder law. This way your directive is better customized to your exact needs and has clearer and more thorough specifications.

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