Durable power of attorney for health care vs living will

This link will take you to a website where you can get help preparing Ohio’s Durable Power of Attorney for Health Care and/or Ohio’s Living Will.

These documents, also known as “advance directives,” can assist health care providers if you cannot communicate because of a serious illness or injury.  A Health Care Power of Attorney allows you to name someone to make medical decisions for you if you are unable to do so. A Living Will allows you to state what type of medical care you want to receive if you are permanently unconscious or terminally ill and unable to communicate.  You can also indicate your wishes regarding organ and tissue donation in a living will.

Each person’s situation is different.  You should contact a lawyer if you need legal representation or have questions about your legal rights and responsibilities.  

If you plan to come to a Legal Aid Brief Advice Clinic, remember to bring all the documents with you.  Attorneys will need the documents in order to advise you.

Put your health care wishes in writing, in case you are ever unable to speak for yourself.

If you're like most people, you aren't eager to spend time thinking about what would happen if you became unable to direct your own medical care because of illness, an accident, or advanced age. However, if you don't do at least a little bit of planning—writing down your wishes about the kinds of treatment you do or don't want to receive and naming someone you trust to oversee your care—these important matters could wind up in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer.

Types of Health Care Documents

There are two basic documents that allow you to set out your wishes for medical care: a living will and a durable power of attorney for health care. It's wise to prepare both. In some states, the living will and the power of attorney are combined into a single form—often called an advance directive. (In fact, both of these documents are types of health care directives—that is, documents that let you specify your wishes for health care in the event that you become unable to speak for yourself.) To find out the name of your state's health care documents, see What Health Care Directives Are Called in Your State.

Two other types of health care documents allow you to declare your wishes in emergency situations: Do-Not-Resuscitate (DNR) orders and Physician Orders for Life-Sustaining Treatment (POLST) forms. These are typically made by those who have a terminal illness or are approaching the end of their lives.

Living Wills

First, you need a written statement that details the type of care you want (or don't want) if you become incapacitated. This document is most often called a living will, though it may go by a different name (such as a health care declaration) in your state. A living will bears no relation to the conventional will or living trust used to leave property at death; it's strictly a place to spell out your health care preferences.

You can use your living will to say as much or as little as you wish about the kind of health care you want to receive. (For more details, see What Do My Living Will and Power of Attorney for Health Care Cover?)

Powers of Attorney (POA) for Health Care

You'll also want what's usually called a durable power of attorney for health care. In this document, you appoint someone you trust to be your health care agent (sometimes called an attorney-in-fact for health care, health care proxy, or surrogate) to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive.

(If you need help picking the right person for this job, see Choosing Your Health Care Agent.)

Who Can Make Health Care Documents

You must legally be an adult (18 years old in most states) to make a valid document directing your health care. You must also be of sound mind—that is, able to understand what the document means, what it contains, and how it works.

When Your Health Care Documents Take Effect

Your health care documents take effect if your doctor determines that you lack the ability—often called the "capacity"—to make your own health care decisions. Lacking capacity usually means that:

• you can't understand the nature and consequences of the health care choices that are available to you, and
• you are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Practically speaking, this means that if you are so ill or injured that you can't express your health care wishes in any way, your documents will spring immediately into effect. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care agent or close relatives) will decide whether it's time for your health care documents to become operative.

In some states, it's possible to give your health care agent the authority to manage your medical care immediately. If your state allows this option, you may prefer to make an immediately effective document so that your agent can step in to act for you at any time, without the need to involve a doctor in the question of whether or not you've reached the point of incapacity.

Making your document effective immediately will not give your agent the authority to override what you want in terms of treatment; you will always be able to dictate your own medical care if you have the ability to do so. And even when you are no longer capable of making your own decisions, your health care agent must always act in your best interests and diligently try to follow any health care wishes you've expressed in your living will or otherwise.

When Your Health Care Documents End

Your written wishes for health care remain effective as long as you're alive, unless you specifically revoke your documents or a court steps in (but court involvement is very rare). Here are a few specifics about when your health care documents are no longer effective:

• You revoke your document. You can change or revoke a health care document at any time. State laws vary as to exactly how you can revoke your document. In some states, you can physically destroy the document or simply tell your health care provider, or you can make a new one. Regardless, make sure your health care providers and your agent know that you have revoked the document, and that the revoked document is no longer on file.
• A court invalidates your document. Most judges recognize that a court is normally not the right place to make health care decisions. However, if your health care is the subject of a dispute and someone questions the validity of your health care directives, the matter may end up before a judge. For example, if someone doubts that you had the mental capacity to prepare a health care document, that person can ask a court to invalidate your document. Such lawsuits are rare, but they do sometimes occur. The burden of proving that you were not of sound mind when you made your document falls on the person who challenges its validity. (In other words, the law presumes that you had the mental capacity to make your health care documents.)

  It's also possible that a court could invalidate your document if it wasn't properly completed—for example, if you did not meet your state's requirements for having the document notarized or witnessed. If this happens, however, it's still likely that any wishes for health care you set out in the document will be followed—as long as they are clearly expressed and you were of sound mind when you wrote them down. In the famous case of Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the U.S. Supreme Court said that any strong evidence of someone's wishes for care should be honored. Your directions won't be ignored simply because of a technical error.

• A court revokes your agent's authority. If, after your health care documents take effect, someone believes that your health care agent is not acting according to your wishes or in your best interests, the concerned person can go to court and ask for an investigation of your agent's behavior. If a court finds that your agent is acting improperly and revokes his or her authority, the job will go first to an alternate agent you named in your document. If there is no available alternate—or if the court invalidates your entire document for one of the reasons discussed just above—a conservator or guardian will be appointed to make health care decisions for you.
• You get a divorce. Getting divorced has no effect on your written directions for health care (your health care declaration). But if you named your spouse as your health care agent, his or her authority is automatically revoked in a number of states. In that case, if you named an alternate agent, that person will take over. If you do get a divorce, it's wise to eliminate confusion by making a new document, even if you named an alternate agent.
• After your death. Generally, your health care documents are no longer necessary when you die. In some states, however, your health care directives remain effective after your death for some very limited purposes. Your agent may be permitted to supervise the disposition of your body, including authorizing an autopsy or organ donation, unless you specifically withheld these powers when you made your health care documents.

To learn more about health care documents, visit our Living Wills & Medical Powers of Attorney section.

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