Living Will Medical Power of Attorney FAQ

  1. A "medical power of attorney" enables you to appoint someone else to make medical decisions for you in the event you are unable to make them yourself. This legal document is also known as a "healthcare proxy" or "durable power of attorney" and is an important part of prudent estate planning.

    What is a Medical Power of Attorney?


    A medical power of attorney is a document that usually accompanies a living will and also specifies a person whom you empower to make medical decisions in the event you become incapacitated. The person you appoint to make decisions in your place is called a "health care proxy."

    Differences Between a Medical Power of Attorney and Living Will


    A living will is a document that is limited to providing information. It informs others about the decisions you would make if confronted with a choice regarding medical treatments. A medical power of attorney is a document that empowers someone with the ability to carry out your wishes. The power of attorney covers situations not covered by a living will, such as where you are unable to make a decision but your life is not in danger. An example might be Alzheimer's Disease which afflicts mental capacity but not longevity. A living will usually restricts its subject matter to life threatening situations and measures that might become medically necessary to prolong your life, such as the use of a respirator.

    Different Types of Powers of Attorney


    There are generally two different types of powers of attorney, which can be of a limited or unlimited duration. In general, they do not require registration with the state but, if the matters involve real estate transactions, registration may be required.
    • General Power of Attorney

      General power usually concerns financial matters, is unlimited in its scope and duration and it appoints a person you name to act on your behalf until the power terminates or is revoked.
    • Specific Power of Attorney

      Specific power given to the appointed person is limited in scope. The power might cover just one area or transaction, such as giving your designee the power to open or close a savings account, resolving a specified contractual dispute or signing a real estate closing document to purchase a house or an apartment. Limits are imposted upon the named representative, and may restrict the scope of that person's power to a single type of conduct or a single transaction. For example, the designee of the specific power of attorney could be granted the power to engage in financial transactions from a specific checking account but not others or to sign the closing documents for a specific real estate transaction but not any other transaction.

    Terminating a Power of Attorney


    You may terminate a power of attorney document at any time while you are competent and able to manage your own legal affairs. The most effective method of termination is to destroy all copies of the power of attorney document that may be in your possession and ensure the same is done with copies you have given to other people. You may also create an additional document which specifically revokes a prior power of attorney, similar in function to a codicil.

    Appointment of Multiple Representatives and Alternates


    You may choose to have more than one person act as your health care proxy. They can decide how they will work together to make your medical decisions. You can require them to act together to make decisions (jointly) or give them the power to act separately. Multiple powers of attorney are usually not recommended due to potential conflicts that could arise between your representatives and, in certain cases, a potential necessity and inconvenience to require both signatures on a document. A better method might be appointing one person to make your decisions and choosing alternates who would be empowered with power of attorney under certain circumstances if your first choices are not available. Some circumstances when alternates would be used include death of the alternate, inability to be reached while traveling or their whereabouts are unknown.

    At What Time Does a Power of Attorney Come Into Effect?


    Technically the power of attorney is active and effective from the moment it is signed. The actual power granted to your designee doesn't occur until certain conditions happen, such as your becoming disabled. In certain states, this may require the diagnosis of one or more physicians.

    Medical Disability and Proper Planning


    The most common need for a power of attorney arises during the times a person encounters a medical emergency or significant disability. Common examples include being involved in an accident resulting you being in a coma or suffering a disease leaving you unable to communicate effectively (such as Alzheimer's disease.) You should give consideration to how important your living will is as compared to the medical power of attorney. Which document should be more powerful? In some situations, a person may wish to have their living will - the statement of their own intentions - be controlling over the decision that a designated person with power of attorney has to make medical decisions. This could include the desire to be taken off of life support systems, which would be controlling over any decision or objection made by the appointed person in a medical power of attorney. It is a good idea to create a medical power of attorney before you need it.

    What If You Don't Have a Medical Power of Attorney?


    In the event that you haven't specified a person to make medical decisions should you become incapacitated, it is likely that a court of law will appoint a "guardian" to do so. This may not be the person you would have appointed as your authorized representative to make your medical decisions. A court may not choose to follow the wishes of your family members and representatives and there may be justifiable reasons for doing so. In order to avoid this uncomfortable situation, it is best to handle such matters in advance by simply creating a power of attorney to designate the person you wish to handle your health care matters. With important life and death matters, you may wish to use the assistance of an attorney experienced in estate planning.

    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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