Preparation is the key to success, and when it comes to estate planning, it’s the key to successfully following your wishes. Nobody wants to think about the time when they can no longer make health and medical decisions for themselves, but being prepared for these situations is better than not. Now the question is, do you get a Living Will or a Healthcare Power of Attorney in your estate plan for this?
For California estate planners, this question might be a false question, because the fact is you don’t have to choose one or the other. In other words, your estate plan might need both documents in order to fulfill your wishes regarding your end-of-life care.
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, among other things:
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 (POA) are often regarded as having broader authority than a living will. However, the bottom line is that your healthcare power of attorney will only give your agent the authority you hand over in the document. In other words, your agent will not have authority you do not explicitly give in the document.
A plan that combines a living will and healthcare power of attorney is often referred to as an advance directive.
An advance healthcare directive is a legally binding document that outlines an individual's healthcare preferences in the event they become unable to communicate or make decisions for themselves. This directive serves as a guide for medical professionals and family members to ensure that a person's wishes regarding medical treatment, life-sustaining measures, and end-of-life care are respected.
A living will, on the other hand, is a type of advance healthcare directive that specifically addresses a person's preferences for medical treatment and interventions. This is particularly in situations where there is no chance of recovery or where prolonging life might lead to unnecessary suffering. A living will can provide explicit instructions regarding issues like resuscitation, the use of life support, organ donation, and palliative care.
Advance directives are more comprehensive than living wills and include the appointment of a healthcare agent. All living wills are advance directives, but not all advance directives are living wills. Some can be POAs, Psychiatric Advance Directives, or a combination of them.
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.
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.
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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