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The Definition of Power of Attorney, Living Will and Advance Directives

Written by: A. Hollyn Scott, Esq. , Contributing Author
Reviewed by: Jordan Walker, J.D. , Legal Writer
Last updated March 11, 2024

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There are two fundamental documents that you should execute during your life to ensure that you receive the kind of medical care you want if you are ever mentally or physically incapacitated.

Table of Contents

The first is commonly called a living will, an advance directive, a patient advocate designation, or something similar. Regardless of the name, these written documents allow you to instruct physicians and health care providers about the kind of health care you want and don’t want in the event you cannot communicate your wishes directly.

The second document, sometimes called a durable power of attorney for health care or health care power of attorney, sets out who has medical power of attorney for your healthcare decisions so that they may answer questions that are not addressed by your living will. The document assigns the person you want as your health care proxy or health care agent, such as a spouse or family member, if you are unable to do your own decision-making.

Both the living will and health care power of attorney are types of advance directives designed to set out your medical plans and decisions in advance. Keep reading for a more in-depth explanation of how these important documents work together in your estate plan.

Living Will

living will is a document everyone should have in their estate plan to instruct family members and medical professionals on the treatment decisions and end-of-life care they wish to receive if they are ever unable to communicate these wishes directly. Although it’s a difficult situation to think about, if you are in a vegetative state or have a terminal illness or terminal condition, having a document in place that specifies whether you want life-sustaining treatment takes the burden of making these painful decisions off of your loved ones and helps to ensure that your medical treatment preferences are honored.

In this document, you set out your wishes for topics such as cardiopulmonary resuscitation (CPR), tube feeding, mechanical ventilation, palliative care (comfort care), and other medical interventions, as well as tissue donation and organ donation.

While it’s good practice to be as specific as possible about your healthcare wishes in your living will, you can’t account for every possibility. This is where the durable power of attorney for health care comes in.

Durable Power of Attorney for Healthcare

The durable power of attorney for healthcare is a legal document that allows you to appoint a trusted person to make medical decisions for you in an emergency. Although you outlined your medical care and treatment desires in your living will, it’s impossible to plan for every circumstance. The health care proxy you appoint in your durable power of attorney for healthcare can make decisions not covered by your living will.

Keep in mind that the person with a durable power of attorney for healthcare can never contradict the terms of your living will. Rather, that person is there to fill in the gaps for situations not covered by your living will, or in case your living will is invalidated for any reason.

Other Names for the Power of Attorney for Healthcare and the Advanced Directive

Depending on the state you live in, the person you grant a durable power of attorney for healthcare may be called any one of the following:

  • Agent
  • Proxy
  • Attorney-in-fact
  • Patient advocate
  • Surrogate

Note that in some states they combine the living will and the durable power of attorney for healthcare into one document called an “advance health care directive.”

In general, the rights you give your health care agent may include:

  • Providing medical decisions that aren’t covered in your healthcare declaration
  • Enforcing your healthcare wishes in court if necessary
  • Hiring and firing the doctors, medical workers, and caregivers providing your treatment
  • Having access to medical records
  • Having visitation rights

State laws for creating these documents vary, so it’s a good idea to do some research on your particular state’s requirements.

Do Not Resuscitate Orders (DNR)

One of the key elements of your living will is where you indicate your wishes regarding resuscitation. You can ask your doctor to add a Do Not Resuscitate Order (DNR) to your medical records. You should also create a pre-hospital DNR to keep nearby to prevent paramedics or your health care facility from trying to resuscitate you.

Ready To Add a Health Care Directive and Living Will to Your Estate Plan?

There’s a lot to think about when planning for your own medical well-being and end-of-life decisions. Easy do-it-yourself estate planning tools and forms can help simplify the advance care planning process.

Our health care directive and living will form allows you to specify your treatment preferences, release your records, and appoint your health care agent, all without the time and expense of an estate planning attorney. The customizable template is also state-specific, so you can be sure that you draft a legal document that complies with your state’s requirements.

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