Living Will vs Durable Medical Power of Attorney
The Living Will (LW), unlike a Last Will and Testament, takes effect immediately. The LW&T, is used when the Testator dies. The LW has no further function when the Principal dies.
The Durable Medical Power of Attorney (DMPA) is often referred to as a “health care proxy”. The DPMA is also called a “health care surrogate” as that position is what it creates. Durable, in the sense that it typically has no expiration date and continues when the Grantor is incapacitated.
Typically used for serious illness and near end of life medical care decisions, both the LW and the DMPA are both unrelated to the disposition of assets. The LW is essentially instructions from the patient to the doctor(s) and hospital staff as to the patient’s wishes. With the LW the patient is directly expressing desired care. With the DMPA the patient is granting decision making power to someone else.
It is possible for both a LW and a DPMA to be active at the same time. If the health care surrogate has a different opinion from that expressed in the LW it probably becomes a very complex issue to resolve.
THE LIVING WILL
The LW expresses your “will” or desire how to be treated while you are living. It is often used to reject life-sustaining treatments when terminally ill. These treatments often include intravenous feeding of food and water, heart-lung machines, ventilators, etc. When there is no detectable brain activity, and the body alone is being sustained, artificially; some prefer to terminate their existence. Note that the LW will not affect routine medical treatments. Prior to the discontinuation of “life support” two doctors are usually required to make the determination that the outlook for recovery is virtually non-existent. Key point: the LW does not change any pain or routine treatment for non life-threatening medical conditions.
THE DURABLE MEDICAL POWER OF ATTORNEY
The surrogate comes into power under the durable medical power of attorney only when the patient is unconscious or not legally able to make decisions on their behalf. More commonly called a Health Care Proxy, this POA often allows for successor agents, the same as a routine Power of Attorney. This form may be statutory or must be drafted by an attorney. The DMPA lets the physician know who is authorized to “make the call”; as the relatives may have a variety of opinions, and sometimes their own agenda.
This is an area where the more notarizations the better. Both documents are “human life” and “estate” related; and, for some, timing is everything. Obviously the author and any witnesses should be notarized. As “state of mind” is often an issue; the patients doctor, if possible should add a “sound mind” witness statement. If the documents are prepared well in advance of hospitalization, the attorney can also add a similar statement, also notarized. This is a highly emotionally charged situation. Great care must be taken to be sure names are printed legibly and your work is flawless. Witnesses should be totally unrelated, have no interest in the estate or payment of medical bills. These documents call for empathy, attention to detail, and very strict adherence to local governing laws.
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See our string on Power of Attorney posts