“What is the difference between a living will and a healthcare power of attorney?”
This is a question that I often hear from clients as we are discussing their estate plan. There appears to be some confusion about the two documents and whether you need one or both as part of a comprehensive estate plan. To answer this question, let’s first look at each of these legal documents and then compare them.
What is a Living Will?
A living will is your written instructions regarding the use of life-sustaining treatments. In a living will, you direct your physician to use, withhold, or withdraw these treatments based on limited circumstances. Your living will becomes effective if you are terminally ill and you lack the capacity to make decisions about your treatment. In addition to placing your wishes for life-sustaining treatments, you can appoint a person to act on your behalf to enforce the terms of your living will.
Deciding whether you want treatments that prolong your life if you are terminally ill is an extremely personal choice. If you are awake and competent, you can communicate these decisions yourself. Unfortunately, in many cases, by the time a person is in the stage of receiving life-sustaining medical treatments, he or she is not able to voice the decision. A living will makes it possible for you to make your wishes known when you cannot otherwise do so.
The interesting thing is that Michigan does not have a living will statute, so typically we do not do stand along living wills, but instead include living will type langauge in the healthcare power of attorney.
What is a Healthcare Power of Attorney?
A healthcare power of attorney gives authority to another person to make healthcare decisions for you if you are unable to do so for any reason. You can give your health care agent the authority to make all healthcare decisions for you when you cannot make them. However, you can also describe in detail the treatments you wish or decline and whether you want life-sustaining treatments. A healthcare power of attorney must be signed when you are competent and understand what you are signing.
Differences Between Living Wills and Healthcare Powers of Attorney
The major difference between these legal documents is that a healthcare power of attorney is much broader and allows you to do more than just give directives for life-sustaining treatments. In addition, your living will only become effective if you are terminally ill and need life-sustaining treatments to prolong death. On the other hand, your healthcare power of attorney is effective as soon as you sign it and can be used in any situation, not just a terminal illness.
Should I Include Both Documents in My Estate Plan?
There are several arguments for using one or both documents in your estate plan. Because you can include end-of-life treatments in your healthcare power of attorney, you may not need a living will. However, there could be situations where you would want a different person named to make end-of-life decisions other than the person named in your healthcare power of attorney.
An experienced Michigan estate planning attorney will listen to your wishes and concerns, review all pertinent information, and then advise you whether you should have one or both documents. Because each person’s situation is different, our attorneys take the time to learn about you, your family, and your wishes before advising you of the options.
Call The Elder Care Firm of Christopher J. Berry, CELA For More Information
Contact our office by calling 888-390-4360 or use our online contact form to request more information or schedule an appointment with an estate planning attorney. Our attorneys can suggest a variety of documents to ensure that your wishes are carried out after your incapacitation or death.
Our firm has offices in Brighton, Livonia, Novi and Bloomfield Hills to better serve our clients in Livingston, Oakland, Washtenaw, and Wayne Counties.