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Health Care Power of Attorney and Living Will: What's the Difference?


Healthcare powers of attorney and living wills are commonly prepared as a part of the estate planning process. The difference between these two documents is often misunderstood.

A living will tells hospitals, doctors, and other medical and legal personnel a person's wishes to not be kept alive by machines if he or she is in a near death condition that two doctors determine is incurable and untreatable.

The living will also has an optional provision for a feeding tube. This provision, if signed, says that if two doctors determine you are in a near death condition (permanently unconscious), the doctor can then withhold artificial food and water. The food and water can only be withheld if it does not provide comfort to the patient.

A healthcare power of attorney allows an agent to make all of your healthcare decisions when a person is unable to make them themselves. If you have a living will, your agent cannot make end-of-life decisions.

A person can have any combination of these two documents or neither of them. Sometimes people only want a healthcare power of attorney because they want their agent to make their end-of-life decisions. In this case, a person would only sign a healthcare power of attorney. The philosophy here is usually based on the belief that your agent is better to make your end-of life decisions because they can consider the situation.

Others choose to have both documents. The philosophy here is usually based on the belief that the person does not want the agent to be responsible for end-of-life decisions. The decisions your agent make could rest heavily on his or her mind for his or her lifetime.

No matter which combination you choose, physicians often talk to family members before decisions are made. These documents, however, are legal documents that must be enforced if taken to court.

If you are considering an estate plan or are concerned that your wishes are carried out in the event of your incapacity, please contact Kimberly Cutler at the law offices of Bridges, Jillisky, Weller & Gullifer, LLC.