For California estate planners, the question posed in the title might be a false question. In other words, your estate plan might need both documents in order to fulfill your wishes regarding your end-of-life care.
Difference Between the Two Documents
Before deciding which document you need (or both), you need to understand the differences between a living will and healthcare power of attorney.
A living will is a legal document that spells out how, when, and where you want to be medically treated when you become incapacitated. You lose capacity, or become incapacitated, when you are no longer able to make informed decisions about your health care or communicate those wishes. For instance, many people with terminal conditions enter a persistent vegetative state before they pass away. Other times, an accident (like a serious car wreck) can leave someone in a coma.
Living Wills allow estate planners to state their preferences regarding organ donation, resuscitation (DNR orders), artificial nutrition, and certain life-prolonging measures.
A durable healthcare power of attorney allows you, the principal, to nominate an agent to make certain decisions for you. You can allow your agent to make many of the same decisions you address in your living will—artificial nutrition, resuscitation, and assisted breathing, to name three. The principal may also choose to give a healthcare agent the power to access certain medical documents.
Healthcare powers of attorney are often regarded as having broader authority than living will. However, the bottom line is that your healthcare power of attorney will only give your agent the authority you actually hand over in the document. In other words, your agent will not have authority you do not explicitly give in the document.
So, Which One Do You Need?
That question is impossible to accurately answer without a thorough understanding of your situation and goals. Estate planning is far from a “one-size-fits-all” affair. However, there is a good chance you will need both. A plan that combines a living will and healthcare power of attorney is often referred to as an advance directive.
If you know exactly what you want to happen with your medical care if you become incapacitated, it’s probably good to at least create a living will. If you know and trust someone to make sure your wishes are followed in the event of your incapacitation, a healthcare power of attorney might be good.
If all of the above applies to you, it might not hurt to have both documents to ensure nothing slips through the cracks.
Contact a California Estate Planning Attorney Today
It’s worth reiterating that estate planning is not a one-size-fits-all situation. Even if you’re fortunate enough to download an online form that accurately communicates your wishes, there’s no telling how it may interact (or interfere) with the other components of your estate plan.
The best way to ensure your wishes are followed is to enlist the help of experienced California legal counsel. Anthoor Law Group has helped countless Californians make an estate plan that accomplishes their goals. We look forward to hearing from you soon!
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