Living Will vs Power of Attorney: Definition, Purposes, Legal Differences and When to Use Each

A living will and power of attorney are two distinct legal documents used to express personal preferences regarding healthcare and financial matters. A living will outlines an individual’s wishes for medical treatment in situations where they cannot communicate. A power of attorney designates someone to make financial or healthcare decisions on the individual’s behalf. Understanding the differences and purposes of these documents is critical for individuals who want control over their medical and financial future, especially during incapacitation or severe illness.

What Is a Living Will?

A living will is a legal document that specifies an individual’s preferences for medical treatment in situations where they are unable to communicate their decisions. It provides instructions regarding life-sustaining treatments, such as resuscitation or mechanical ventilation, in cases of terminal illness or permanent unconsciousness. According to the American Bar Association, a living will is designed to ensure that a person’s healthcare wishes are respected when they are no longer able to make decisions due to incapacitation.

What Is Power of Attorney?

A power of attorney is a legal document that grants an appointed person (the agent) the authority to make decisions on behalf of another person (the principal) in various matters, including healthcare or financial decisions. The principal can specify the scope of the agent’s authority, which may range from general to specific actions. According to Cornell Law School, power of attorney allows individuals to designate someone they trust to act on their behalf when they are unavailable or incapacitated.

What Is the Difference Between Living Will vs Power of Attorney?

The difference between a living will and power of attorney lies in their purpose and scope of authority.

1. Purpose: A living will specifically addresses an individual’s medical treatment preferences in case of terminal illness or incapacitation. Power of attorney, however, grants someone the authority to make decisions on behalf of the principal, which can include medical or financial matters.
2. Authority: A living will does not assign decision-making authority to anyone; it simply outlines medical instructions. Power of attorney, on the other hand, gives a designated person (the agent) the authority to make decisions.
3. Timing: A living will is activated when the individual is incapacitated and cannot communicate. Power of attorney can be effective immediately or upon incapacitation, depending on how it is structured.
4. Scope: A living will focuses solely on healthcare decisions. Power of attorney can cover broader areas, including financial and legal matters, beyond just healthcare.
5. Legal Role: A living will only applies to end-of-life care. Power of attorney allows someone to make ongoing decisions for the principal, potentially before any life-threatening event occurs.

How Much Does a Living Will Cost?

A living will costs $20 to more than $1000, depending on who prepares the document and other factors. These factors include:

1. Method of Preparation: Online templates are generally cheaper, ranging from $20 to $100, while attorney-prepared living wills can cost $200 to over $1000 depending on the complexity.
2. Attorney Fees: Hiring an attorney for personalized legal advice and document drafting increases the cost significantly, especially if the living will is part of a comprehensive estate plan.
3. Location: Legal fees and the cost of living vary by state, which can affect the price of preparing a living will. Areas with higher legal service costs may result in higher fees.
4. Complexity of Instructions: If the living will includes detailed or complex medical instructions, or if it requires consultation with healthcare professionals, the preparation costs may rise.
5. Additional Services: Costs can increase if additional services, such as notarization, legal consultations, or filing with relevant authorities, are required.

Can Family Override a Living Will?

No, your family cannot override your living will. A living will is a legally binding document designed to ensure that your healthcare preferences are followed in situations where you cannot communicate. Medical professionals are obligated to follow the directives outlined in your living will, regardless of family opinions or objections. This document specifically exists to prevent family members from making decisions that conflict with your wishes. While family members can express concerns, the instructions in the living will take precedence, as they represent your explicit choices for medical care.

Do I Need Both the Living Will and the Durable Power of Attorney?

Yes, the living will provides clear evidence of your wishes concerning medical care and treatment and will help ensure that the agent and physicians carry out your wishes. The durable power of attorney complements this by allowing an appointed agent to make decisions if unforeseen circumstances arise or if specific decisions need to be made that are not covered in the living will. Having both documents ensures comprehensive coverage of your healthcare preferences and decision-making authority.

What Are the Scenarios to Cover in a Living Will?

In a living will, you can outline specific medical treatments and scenarios that reflect your personal wishes for end-of-life care. These scenarios ensure that healthcare providers and your loved ones understand your preferences when you are unable to communicate. Some of the key scenarios to consider include:

1. Resuscitation (CPR & DNR): If you do or do not want to be intubated or resuscitated, you can include what’s known as a Do-Not-Resuscitate (DNR) order in your living will. DNRs can also be stand-alone documents to clarify these wishes.
2. Comfort Care (Palliative Care) & Pain Management: Palliative care directives can specify your preferences for pain management, whether you want to die at home, and any other interventions you desire for comfort. You can state what types of pain relief you would or would not want.
3. Tube Feeding: You can leave instructions regarding whether, and for how long, you would want tube feeding to provide nutrients and fluids to your body if you are unable to eat or drink.
4. Mechanical Ventilation: Indicate whether you would want to be placed on a mechanical ventilator if you are unable to breathe on your own, and specify for how long this support should continue.
5. Organ/Tissue Donations: State whether you wish to donate your organs or tissues for transplant. It is essential to include that you understand you may receive life-sustaining measures until the procedures for organ donation are completed to prevent confusion.
6. Antibiotics/Antivirals: You can express whether you want to receive treatment for infections, such as antibiotics or antivirals, and how aggressively you would want infections to be treated as you near the end of life.

Does a Living Will Trump a Power of Attorney?

Yes, your living will is going to trump your medical power of attorney unless you reside in a state that does not honor living wills. The living will outlines your specific healthcare preferences in situations where you are incapacitated, and medical professionals are legally bound to follow those instructions. In cases where the living will conflicts with the decisions made by the agent under a medical power of attorney, the living will takes priority. However, in states that do not fully recognize living wills, the agent appointed through the power of attorney may have more authority to make decisions. It is important to understand the laws in your state to ensure your healthcare wishes are followed accurately.

How to Prepare Your Own Living Will

In order to prepare your own living will, follow these steps:

1. Research Your State’s Requirements: Each state has specific laws regarding living wills, so start by understanding the legal requirements where you live. This includes forms, witness signatures, and notarization requirements.
2. Outline Your Healthcare Preferences: Clearly state your wishes for medical treatments in situations such as resuscitation, life support, palliative care, and organ donation. Make sure to cover specific scenarios like mechanical ventilation and tube feeding.
3. Choose a Healthcare Agent: While a living will expresses your wishes, you may want to appoint a healthcare agent through a durable power of attorney to make decisions if any scenarios arise that your living will doesn’t cover.
4. Complete the Living Will Form: Use a state-specific form or create your document with the help of legal templates or an attorney to ensure it meets all legal standards.
5. Sign and Witness the Document: Ensure your living will is signed in the presence of the required number of witnesses, as specified by your state’s laws. Some states may require notarization.
6. Distribute Copies: Provide copies of your living will to your healthcare agent, close family members, and your physician. Keep the original in a safe but accessible place.
7. Review and Update as Needed: Regularly review your living will and make updates if your healthcare preferences or circumstances change.

What Is the Best Power of Attorney to Have?

The best power of attorney to have is a General Durable Power of Attorney. This type of power of attorney remains in effect even if you become incapacitated, allowing your appointed agent to make financial, legal, and healthcare decisions on your behalf. It provides broad authority and continues to be valid in situations where you cannot manage your affairs, making it the most comprehensive and reliable option for long-term planning. A general durable power of attorney offers flexibility and ensures that someone you trust can handle your matters during unexpected circumstances.

Can a Power of Attorney Override a Living Will?

No, a power of attorney cannot override a living will if the principal created this while they were of sound mind and fully comprehended their decisions. The living will outlines the principal’s specific healthcare preferences, which must be followed by medical professionals. The only exception is if the patient includes a condition in the living will that allows the proxy’s decision to override theirs. In such cases, the proxy’s authority may be recognized, but otherwise, the living will takes precedence.

When Do You Need a Power of Attorney?

You need a power of attorney when you want to designate someone to make legal, financial, or healthcare decisions on your behalf, particularly in cases of incapacity or absence. A power of attorney is essential in scenarios such as:

1. Incapacity: If you become mentally or physically unable to manage your own affairs due to illness, injury, or age-related conditions, a power of attorney ensures that someone you trust can handle important decisions for you.
2. Travel or Unavailability: When you are unavailable for an extended period, such as during travel or military deployment, a power of attorney allows your appointed agent to manage your finances, property, or healthcare in your absence.
3. Medical Emergencies: In situations where quick medical decisions are required, having a healthcare power of attorney in place allows your agent to make treatment decisions aligned with your preferences.
4. Complex Financial Management: If you need help with managing investments, real estate transactions, or other financial matters, a power of attorney can allow an agent to oversee these affairs on your behalf.

Why Do I Need a Living Will or Health Care Power of Attorney?

Many people will want to have both documents, because a living will only applies in limited end-of-life circumstances, whereas a health care power of attorney covers all other situations concerning your medical care whenever you cannot make healthcare decisions for yourself. A living will ensures that your preferences for life-sustaining treatments are followed, while a health care power of attorney designates someone to make broader healthcare decisions on your behalf in any situation where you are incapacitated. Together, these documents provide comprehensive coverage for your medical care.

How Do I Make a Living Will or a Durable Power of Attorney for Health Care?

In order to make a living will or a durable power of attorney for healthcare, follow these steps:

1. Research Your State’s Requirements: Start by understanding the legal requirements for both a living will and a durable power of attorney in your state. These may include specific forms, witness requirements, and notarization.
2. Decide Your Healthcare Preferences: For a living will, clearly outline your medical treatment preferences for end-of-life care, such as resuscitation, life support, and organ donation. For a durable power of attorney, decide who you trust to make healthcare decisions on your behalf if you are incapacitated.
3. Complete the Appropriate Forms: Use state-specific forms to create both a living will and a durable power of attorney. These forms can often be found online or obtained from legal service providers, and they ensure your documents comply with state law.
4. Consult an Attorney (Optional): While you can create these documents on your own, consulting an attorney ensures that your living will and durable power of attorney are properly drafted and meet legal standards. An attorney can help address any specific concerns or preferences.
5. Sign and Witness the Documents: Make sure your living will and durable power of attorney are signed in the presence of witnesses, as required by your state’s laws. Some states also require notarization to make the documents legally binding.
6. Distribute Copies: Provide copies of your living will and durable power of attorney to your healthcare agent, close family members, and your primary healthcare provider. Keep the original documents in a safe but accessible location.
7. Review and Update Regularly: Review your documents periodically to ensure they still reflect your wishes, and update them if your preferences or circumstances change.

Do You Need a Lawyer for a Power of Attorney and a Living Will?

No, you do not need a lawyer to create your power of attorney or living will. LegalPen offers state-specific, valid, legal forms and documents so you can feel confident that the decisions you want made will be respected and honored. With these resources, the person or people you trust most will be empowered to make decisions on your behalf, ensuring your wishes are followed without the need for legal representation. However, if you have complex situations or specific legal concerns, consulting a lawyer may provide additional peace of mind.

Once I Have the Documents, What Do I Do?

Once you have the power of attorney and living will documents, follow these steps:

1. Store the Original Documents Safely: Keep the original documents in a secure and easily accessible location, such as a safe or file cabinet. Make sure they are protected but can be retrieved when needed.
2. Distribute Copies: Provide copies of your power of attorney and living will to your appointed agent, family members, and your healthcare providers. This ensures that the people responsible for making decisions on your behalf have immediate access to the documents.
3. Inform Key People: Make sure your healthcare agent, doctors, and family members are aware of your wishes and where the documents are stored. This will help them act quickly if needed.
4. Review and Update Regularly: Periodically review your documents to ensure they still reflect your preferences. Update them if there are any changes in your health, relationships, or personal decisions.
5. Provide Copies to Hospitals or Care Facilities: If you are admitted to a hospital or long-term care facility, make sure they have copies of your living will and power of attorney on file to ensure your healthcare wishes are respected.

How to Get Power of Attorney Over a Parent

In order to get power of attorney over a parent, follow these steps:

1. Discuss the Decision with Your Parent: Begin by having an open conversation with your parent about the need for a power of attorney (POA). Explain the importance of having someone they trust to make decisions on their behalf, particularly in cases of incapacity or medical emergencies.
2. Choose the Type of Power of Attorney: Decide with your parent what type of power of attorney they need—whether it’s a general durable power of attorney for broad legal and financial authority, or a healthcare power of attorney for medical decisions.
3. Download or Obtain the Correct Forms: Get the appropriate POA forms for your state, which can be found online, at legal services offices, or through a lawyer. Ensure that the forms meet your state’s specific legal requirements.
4. Complete the Forms: Fill out the forms with your parent, clearly stating your parent’s preferences and granting you the necessary authority to act on their behalf. Ensure your parent fully understands the powers they are giving you.
5. Sign the Document with Witnesses: Your parent will need to sign the power of attorney forms in front of witnesses. Some states require notarization, so check your state’s rules to see if a notary public must be present.
6. File and Store the Documents: Once signed, store the original documents in a safe, accessible location. Provide copies to your parent’s doctors, financial institutions, and any other relevant parties, so they are aware of your legal authority to act.
7. Activate the POA When Needed: In some cases, the power of attorney is effective immediately; in others, it becomes active only when your parent is incapacitated. Make sure you understand when and how you can begin using the power of attorney based on the form’s provisions.

At What Age Should You Think About Making a Living Will?

Once a child reaches age 18, it’s a good idea to set up some sort of advance directive—either a healthcare proxy through a medical power of attorney (POA) or a living will (or both). Before 18, parents or legal guardians can make all medical decisions on their behalf, but once adulthood is reached, individuals must take responsibility for their own healthcare decisions. Having a living will ensures that your medical preferences are documented and followed in case of an emergency where you are unable to communicate, giving you control over important healthcare choices at any stage of adult life. It is particularly important for young adults who may be starting college, entering the workforce, or living independently.

Who Should Be Health Care Power of Attorney?

You can choose anyone who is over 18 years of age and who is not your doctor or other healthcare provider. Your agent could be a family member, a trusted friend, or even a spiritual advisor. It’s crucial to select someone who you trust implicitly to make decisions in line with your healthcare wishes, especially in stressful or emotional situations. The person you choose should be responsible, reliable, and able to communicate effectively with medical professionals. Additionally, it’s important that your healthcare agent feels comfortable advocating for your preferences, even if they face opposition from others, such as family members or healthcare providers. Make sure to discuss your wishes with this person beforehand to ensure they are willing and able to honor your decisions.

How to Set Up Durable Power of Attorney

In order to create a legally valid durable power of attorney, all you need to do is properly complete and sign a fill-in-the-blanks form that’s a few pages long. Some states have their own forms, but it’s not mandatory to use them; however, they may make the process simpler. You can find these forms online, through legal service providers, or at local government offices. Additionally, some banks and brokerage companies have their own durable power of attorney forms, which you might need to use to grant authority for specific financial matters. Once completed, the document should be signed in the presence of witnesses or a notary, depending on your state’s requirements, to make it legally binding.

What Three Decisions Cannot Be Made by a Legal Power of Attorney?

A power of attorney cannot change or invalidate a will, act outside of the principal’s best interest, or make decisions on behalf of the principal after their death. These limitations ensure that the power of attorney is used only within the bounds of the principal’s intent and legal authority. Additionally, the agent cannot violate the terms of nominating documents, such as trusts or beneficiary designations, ensuring that the principal’s original estate planning documents remain intact and valid.

What Are the Disadvantages of a Durable Power of Attorney?

A durable power of attorney can be a useful legal tool, but it comes with certain drawbacks that should be considered before setting it up. Some of the main disadvantages include:

1. Potential for Abuse: The agent has significant authority, and if not carefully chosen, they may misuse their power for personal gain or act against the principal’s best interests.
2. Lack of Oversight: Once the durable power of attorney is in place, there is little oversight to monitor the agent’s actions unless someone challenges them in court.
3. No Post-Death Authority: The durable power of attorney terminates upon the principal’s death, meaning the agent cannot make any decisions regarding the estate after death.
4. Difficulty in Revocation: If the principal becomes incapacitated, it may be challenging to revoke or change the durable power of attorney if the agent is acting improperly.
5. Limited Acceptance by Some Institutions: Some financial institutions or organizations may refuse to honor a durable power of attorney unless it is their own specific form or document. This can cause complications in certain transactions.

What Is the Difference Between a Living Will, Durable Power of Attorney, and an Advanced Directive?

The difference between a living will, durable power of attorney, and an advanced directive lies in their purpose and scope:

1. Living Will: A living will is a legal document that specifies your medical treatment preferences for end-of-life care when you are incapacitated and cannot communicate. It addresses decisions like resuscitation, life support, and palliative care. It is used when a person is terminally ill or permanently unconscious, and doctors need to know their preferences regarding life-sustaining treatment.
2. Durable Power of Attorney: A durable power of attorney designates someone (the agent) to make decisions on your behalf if you are incapacitated. This can include healthcare or financial decisions. In healthcare, the agent can make broader decisions not covered by a living will. It is used when an individual is unable to make medical or financial decisions due to incapacitation, but decisions beyond end-of-life care are required.
3. Advanced Directive: An advanced directive is a broader document that typically includes both a living will and a durable power of attorney for healthcare. It provides comprehensive instructions for healthcare decisions and appoints an agent to act on your behalf. This is used to cover a wide range of healthcare scenarios, from routine medical decisions to end-of-life care, ensuring that all preferences are addressed.

In each situation:

1. Living Will: Used in end-of-life scenarios to guide treatment preferences.
2. Durable Power of Attorney: Used when a trusted individual needs to make healthcare or financial decisions when the principal is incapacitated.
3. Advanced Directive: Used to cover both end-of-life care and ongoing medical decision-making, providing a comprehensive plan for future healthcare scenarios.

What Document Combines a Living Will and a Health Care Power of Attorney?

Many states combine the living will and power of attorney into a single document known as an advance directive. This document allows you to specify your medical treatment preferences, such as end-of-life care, and to appoint a healthcare agent who can make decisions on your behalf if you are incapacitated. By combining both into one form, the advance directive ensures that your wishes are clearly outlined while giving someone you trust the legal authority to make decisions in situations that may not be covered by your living will. It’s important to assign power of attorney only to someone who you trust to honor and carry out your wishes fully, as this person will have significant authority over your healthcare decisions.

What Are the Requirements for Power of Attorney in Pennsylvania?

In order to establish a durable power of attorney in Pennsylvania, several legal requirements must be met. Here’s a breakdown of these requirements:

1. Capacity: The principal (the person creating the power of attorney) must be of sound mind. This means they must understand the nature of the document and the authority they are granting to the agent.
2. Form: Pennsylvania does not mandate the use of a specific form, but the document must be clearly written and include the necessary information, such as the powers granted and the names of the agent and principal.
3. Signatures: The principal must sign the power of attorney document in front of two adult witnesses. The agent does not need to sign at the time of creation but must acknowledge their role in writing before acting on the principal’s behalf.
4. Notarization: The document must be notarized to be legally binding in Pennsylvania. This ensures the principal’s identity and confirms that they signed the document willingly.
5. Agent’s Authority: The power of attorney must clearly outline the agent’s authority. If financial powers are granted, the document should specify if it applies immediately or upon incapacitation.
6. Durability Clause: To ensure that the power of attorney remains valid even if the principal becomes incapacitated, the document must include a clause specifying that it is “durable.”
7. Recording: If the agent is granted authority over real estate transactions, the power of attorney document must be recorded in the county where the real estate is located.

How to Set Up Medical Power of Attorney

Setting up a medical power of attorney ensures that someone you trust can make healthcare decisions on your behalf if you become unable to do so. By following these steps, you can establish this important legal document:

1. Choose Your Agent: Start by selecting a trusted person, often referred to as your healthcare agent or proxy, who will make medical decisions on your behalf if you’re unable to. This person should understand your medical preferences and be willing to advocate for your wishes.
2. Complete a Medical Power of Attorney Form: Obtain a medical power of attorney form specific to your state. Many states provide these forms for free, or they can be found online through legal service providers. The form will typically ask for the name of your agent and any specific instructions you want to include about your medical care.
3. Discuss Your Wishes: Talk with your chosen agent about your medical preferences, such as treatments you want or don’t want, resuscitation options, or end-of-life care. This will help your agent make informed decisions when needed.
4. Sign and Witness the Document: Once the form is completed, sign the document in the presence of witnesses. Many states require two adult witnesses who are not related to you, or in some cases, notarization may be required to make the document legally binding.
5. Distribute Copies: Provide copies of your signed medical power of attorney to your healthcare agent, doctors, and family members. Keep the original document in a safe but easily accessible place.
6. Review and Update: Periodically review your medical power of attorney to ensure it still reflects your preferences. Update it as necessary if your wishes or circumstances change.