Health Care Power of Attorney Basics
Each state has some form of a health care directive. Individuals can use a health care directive to express instructions for medical care. States use different terms for this legal document. The requirements and procedures for health care directives and living wills vary by state.
For example, one state might use the term "living will." Another state may call it an "advance health care directive." In general, if a living will meets your state's legal requirements, its instructions are legally valid and binding.
This section gives an overview of living wills and other health care directives. It also provides state-specific resources related to these types of estate plans. You may find a sample power of attorney form here.
Note: Your state may refer to this document as a health care directive or living will, or it might use other similar names. This document may be different from a medical power of attorney in your state.
Why You Should Make a Living Will
You can express all medical decisions in a living will. By creating a living will or a similar health care directive, you can accomplish two critical goals:
Creating a living will reduces the likelihood of emotional disputes over your medical and end-of-life care. Taking your health care wishes into your own hands can provide peace of mind for your family. Your loved ones will know your wishes if you face a terminal illness or serious medical condition.
Unfortunately, many people forgo creating living wills. The difficulty of the subject matter is the most common reason given for not making a health care directive. Few people are excited to discuss the subject of mental incapacity and end-of-life care. It can also be hard to consider when a power of attorney is for a child. But pushing past any initial feelings of discomfort and awkwardness can pay off later.
What Is a Living Will?
A living will ensures that a person's medical care and treatment wishes are honored. Should you become mentally incapacitated, having a living will allows you to have a voice. The person making medical decisions on your behalf has your input. Health care providers will know your preferences.
Common medical decisions include:
- Deciding if you want to receive life support
- Choosing a do not resuscitate (DNR) order or approving resuscitation efforts
- Determining specifics of organ donation
- Electing to undergo or avoid different kinds of treatment, such as feeding tubes, medical procedures, or pain management methods
- Deciding on blood transfusions, dialysis, or the use of a respirator
- Making decisions relating to the administration of life-sustaining drugs and intravenous fluids
Many people consult with family members and friends before making their final decisions.
It's a good idea to begin thinking about your living will early in the estate planning process. That way, you'll give yourself time to plan carefully and consult with your loved ones. Remember that finances and property are handled in different estate planning documents, such as a will.
How It Works: State Laws for Health Care Directives
Every state has some form of health care directive for residents. Individuals can use these estate planning documents to express medical care preferences and instructions. Keep in mind that states may use different terms and have other requirements and procedures.
For example, one state might use the term "living will," while another uses "advance health care directive." Also, one state may require medical personnel to obey living will instructions. Another state may provide legal immunity to medical personnel if they follow the directive.
If you have questions about your state's health care directive laws, it's wise to seek legal advice from an attorney.
Can I DIY a Living Will or Health Care Directive?
Sometimes, you can create your living will via online forms. You can select state-specific forms to comply with the requirements where you live. If you need legal advice, there is always the option to have an attorney review your forms during the process.
Are you still trying to figure out what to expect? You can learn more about what a sample form looks like and the kinds of questions you will answer.
Health Care Directives Are Part of a Thorough Estate Plan
Health care directives are an essential component of a comprehensive estate plan. As discussed above, planning for your future care may be a tough topic to discuss. But estate planning is a critical step to protect your loved ones to ensure your wishes are fulfilled and your family is supported following your death.
An estate is composed of property and assets you own when you die. An estate plan should account for everything you own at your death. For example, you may use strategies such as lifetime gifting to reduce estate tax and beneficiary designations to reduce the assets in your estate at the time of your death.
Your estate may consist of the following:
- Real estate and real property (i.e., houses and land)
- Life insurance without a named beneficiary
- Bank accounts solely owned by you
- Annuities with a named beneficiary
- Retirement accounts without a named beneficiary
A will allows you to determine what beneficiaries will get the estate's assets at your death. Including this basic planning document in your estate plan can ensure that the probate court is advised on your wishes in issues such as who will oversee the administration of your estate or who'll serve as a guardian for your minor children.
Your will must go through the probate process, during which the probate court will appoint a personal representative. This individual will oversee the administration of your estate. But opening an estate during the probate process is a matter of public record.
Should you want a greater sense of privacy regarding your assets, you may explore trusts with an estate planning attorney. A trust can supplement or replace a will and manage property during your lifetime.
Trusts are separated into two main groups: revocable living trusts and irrevocable trusts. You can learn more about trusts here. After revocable living trusts and irrevocable trusts, trusts fall into two broad categories: testamentary trusts and living trusts.
To create a trust, the property owner, aka the grantor, transfers legal ownership to a family member, professional, or institution. This person is called the trustee. Grantors may name themselves as trustee of a loving trust during their lifetime and name a successor trustee to act when they are disabled or deceased. The trustee manages the trust assets to support another person, the beneficiary. A trust is another estate planning tool that may suit your situation well.
Whether you have been working on your estate plan for years or need assistance creating a living will or other estate planning documents, an estate planning attorney can assist. An experienced attorney can help you explore your legal options.
Living Wills: How an Attorney Can Help
An attorney can answer any questions you have about health care directives. They can help you create a living will clearly stating your end-of-life and other medical decisions.
You can search and consult with an experienced estate planning attorney in your area — often for free for the first consultation.