A Living Will is a legal document addressing only deathbed considerations; a client unilaterally declares his/her desire that life-prolonging measures be discontinued when there is no hope of ultimate recovery.
On the other hand, people use a Durable Power of Attorney for Health Care to appoint someone to make all healthcare decisions, limited by certain elections regarding deathbed issues.
Sadly, such monumental decisions go unprepared when our elderly loved ones pass away before finishing a Living Will or Power of Attorney of any kind.
The client must be at least 18 years old and mentally competent at the time he/she executes either document but incompetent to participate in the decision-making process when either is implemented. It is worth noting that both documents are only applicable if the client is incompetent.
Under the a Living Will, a client declares that if he/she is certified to have an incurable, terminal injury/illness and/or to be permanently unconscious by two examining physicians (including the client’s attending physician), that artificial life-support systems be withheld or disconnected. The client may also elect to discontinue artificial nutrition and hydration (intravenous feeding) by so designating on the form. When an elderly person is at this stage their chart in the hospital or Nursing Home will reference the acronym “DNR” meaning Do Not Resuscitate. This advanced directive can save many seniors and their families much unneeded anguish and allow everyone to emotionally prepare for one’s passing away instead of taking care of legal details.
Under the Health Care Power of Attorney, the client makes three separate and independent elections authorizing the agent:
1. to direct disconnection of artificial life-support systems in the event of terminal illness;
2. To direct disconnection of artificial life-support systems in the event of irreversible coma; and
3. to direct discontinuation of artificial nutrition and hydration.
In addition, the Health Care Power of Attorney form provides a space for the client to set forth any specific medical, religious or other desires concerning his/her health care. The client may also use this section as a backup source for organ donation.
Both documents are signed in front of two witnesses and a notary public or a justice of the peace who acknowledges the client’s signature. The witnesses to a Living Will are sworn by the notary public/justice of the peace and indicate that the client is at least 18 years of age and signed the instrument as a free and voluntary act.
The Living Will witnesses may not be the client’s spouse, attending physician, heirs-at-law or person with claims against the client’s estate.
The Health Care Power of Attorney witnesses may not be the designated agent, the client, spouse or heir or person entitled to any portion of the client’s estate upon death under Will, Trust or operation of law.
Many times people are frequently confused as to why both a Living Will and Health Care Power of Attorney are necessary or appropriate. The Living Will is helpful as a backup document: In the event that the client enters an irreversible coma and the health care agents designated in the Health Care Power of Attorney are deceased or unloadable, the Living Will sets forth the desires of the client concerning his/her death-bed treatment which may be followed by attending physicians. The law provides that to the extent that a Durable Power of Attorney conflicts with a Living Will, the Health Care Power of Attorney controls. Copies of both the Durable Power of Attorney for Health Care and the Living Will are forwarded to the client’s primary care physician for inclusion in medical records.
Both documents are revocable through normal revocation procedures.
Upon entering a Nursing Home a Durable Power of Attorney for Healthcare will be asked for to then be included in the chart of the patient. This document, along with a Living Will are documents that are not asked for upon entering an Assisted Living community.
Preparation is the underlying thread here and families are much better off facing these difficult decisions now then attempting to make these decisions later.