Living Will Living Will, Medical Power of Attorney FAQ

  1. A Living Will, Medical Power of Attorney or Healthcare Proxy may be used when a person is incapacitated and unable to make important medical decisions. If someone is involved in a serious car accident or suffer a heart attack, they may be unable to voice their wishes as to whether life sustaining medical treatment should be provided. These legal documents are usually a standard part of estate planning measures since, in most instances, these issues arise more commonly due to advancing age rather than an unforeseen accident.

    What is a Living Will? Is it Different than a regular Will?


    Many people associate a will with a “Last Will and Testament” - which is the document that people use to make a final distribution of assets in an estate. A Living Will deals with health issues, where you set forth instructions (a “directive”) as to how you wish that medical treatment for life sustaining measures should be handled should you become incapacitated and unable to make medical decisions yourself.

    What is a Healthcare Proxy or Medical Power of Attorney?


    The Healthcare Proxy or Medical Power of Attorney (also called a “Durable Power of Attorney”) is a written document that specifies a specific person whom you select to be your decision maker regarding medical treatment in the event you become incapacitated. It is different from a living will in that it can cover situations which do not involve life sustaining measures. For example, Alzheimer’s Disease, dementia or being in a coma are not life threatening medical situations. However, in all of these circumstances, the person is usually unable to make decisions for themselves and a Medical Power of Attorney or Healthcare Proxy will allow your designated person to make important medical decisions in those circumstances.

    Do I Need a Living Will or a Medical Power of Attorney? When Will I Need One?


    It is advisable to have a living will and healthcare proxy, even if the situation arises that you actually didn’t need one. For example, you may be in a coma, semi-permanently unconscious or in another state where you are unable to communicate to a doctor or health care provider important medical decisions. Having a living will enables you to carry out the decisions that you would have made if you were capable of sharing them with your medical provider. Having a living will should give you peace of mind, not worrying about other people making important medical decisions for you that would be against your wishes.

    What should be contained in a Living Will and Medical Power of Attorney?


    A living will express the nature of a person’s decisions regarding life saving measures. It will usually include directives whether doctors should use procedures to sustain your life and how a person feels about the use of specific medical treatments, including experimental ones that might be life sustaining. The language in a living will should be specific and not general and vague. With matters of life and death, it is of paramount importance that interpretation of a living will should be made with certainty and without question as to intent of the maker. It should contain the name and address of your health care representatives and also specific directives regarding certain situations, e.g. what to do if you are being kept alive by a respirator.

    Are There Specific Formalities I Need to Follow? Do I Need Witnesses and a Notary?


    A living will generally requires the same rules and procedures as a last will and testament, including the maker’s signature, unrelated and unbiased witnesses and statements showing that the maker is of sound mind (also called “capacity” to appreciate the circumstances.) The witnesses to your living should not be blood relatives or anyone who might have a financial interest in your estate, health care, or other manner which would involve you. In some jurisdictions a living will may need to be notarized.

    Can I Alter or Terminate my Living Will?

    Yes, you can change or end your living will at any time. Circumstances may change that prompt you to do so. You may create a second document that alters your original living will. You may also choose to terminate your living will be destroying the document or creating a second document that declares the first one null and void.

    When Does a Living Will or Medical Power of Attorney Become Active?


    State laws vary but they will usually involve the diagnosis of at least one or two doctors. In Kansas, for example, a living will becomes active once two physicians determine that a person is terminally ill.

    Discussing Your Living Will and Medical Power of Attorney with Your Doctor


    It is important to discuss the content of your living will with your doctor or health care provider so they will know about your wishes with regards to medical decisions that will need to be made. It is also important to determine whether these people are willing to carry out your wishes or whether they may have certain moral, ethical or religious objections that may make it difficult for them to do so. Some states may require the inclusion of medical records with the living will and it is probably best for you to share your wishes and your living will and medical power of attorney with your health care provider

    State Living Will Forms


    States often allow the use of forms that contain the recommended or required contents for living wills. Some states allow the use of model living will forms and other states provide living will forms and require substantial compliance with the forms. If a person finds the provided will form to be too narrow or to exclude important issues, they may want to include additional directives.

    Legal Concerns of Following Directives of a Living Will, Euthanasia, Assisted Suicide


    In general, a health care provider that follows the directives of a living will may be immune from civil or criminal prosecution and from any findings of improper conduct. Some state laws make references to suicide, homicide and euthanasia. A decision made to follow the directives within a living will that includes a refusal of life sustaining treatment will not be considered an assisted suicide or a homicide.

    In addition, you shouldn’t worry about an insurance company terminating your life insurance policy if your living will contains instructions not to accept life sustaining treatments. It is not considered suicide (a likely violation of your policy) since the decision to refuse these treatments is made when you aren’t able to make your own decisions. At that point, the living will becomes effective.

    Should I Have an Attorney Create a Living Will? Can I Use a Form?


    There are many good legal forms available online. However, with such an important issue that concerns life and death, it is probably within your best interests to invest in a consultation with a licensed attorney. With money matters, you can have second chances and mistakes can be remedied – but this is not a risk that you would want to take with your health, welfare and survival. Your lawyer can help you address circumstances that you may not have considered and the form may not include. With matters of paramount importance, it is always best to seek experienced counsel.

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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