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Living Will vs Power of Attorney: What's the Difference?

Posted on April 9th, 2020

Living wills and durable power of attorney are two linked legal concepts that nonetheless have significant differences. Both are documents that can make end-of-live decisions easier for both and your family. But they can also cause some confusion as to what makes each form of health care directive distinct:

  • A living will is a set of instructions that are left for your doctor. The living will tells the doctor what they should do in certain circumstances. For instance, a living will can direct a doctor when they may or may not operate.
  • In contrast, durable power of attorney assigns key decision making power to an individual who is usually (but not necessarily) a member of your family.

To learn more about the differences between living will vs. power of attorney, as well as the benefits of each, speak to an estate planning attorney at Silverman Law Office, PLLC today.

What Is a Living Will?

Living wills are directions left for your doctor concerning your health care treatment. It takes effect when you are no longer able to make decisions on your own and are terminally ill. The instructions will determine whether or not your doctor takes measures to prolong your life or postpone your death.

The scope of a living will is much smaller than DPOA for health care. It only applies to end-of-life situations or situations in which you are permanently unconscious. Even someone with DPOA for health care decisions cannot override your directives in a living will.

What Is a Durable Power of Attorney?

Durable power of attorney (or DPOA) establishes an individual who can act on your behalf concerning important decisions. There are two kinds of DPOA, financial and health care. If you assign someone DPOA for health care decisions, they are commonly called a health care proxy. The designation entitles them to make decisions based on your wishes.

The DPOA you establish with your health care proxy will begin to take effect once you are no longer capable of making health care decisions on your own or can no longer communicate your desires to doctors.

DPOA can also be established for financial decisions, but this is outside the scope of this article. Here, we’ll focus on health care.

Difference Between Living Will vs. Power of Attorney for Healthcare

Your health care proxy is not nearly as limited in scope as your living will. Health care proxies can make decisions should your capacity to make health care decisions become diminished. For instance, in cases where an individual has dementia, Alzheimer’s, or suffers a debilitating traumatic brain injury, your health care proxy is the individual who will help doctors make key decisions regarding your health care. It’s important for those who are even in good health to establish a health care proxy.


Setting Up a Durable Power of Attorney

Most individuals will make a spouse or other close relative their health care proxy. In order to do this, you will first need to talk to them about your wishes and establish the significance of this role in your life.

Each state has specific forms that must be filled out and filed before DPOA can take effect. Your attorney can help you draft the necessary forms. You will designate your health care proxy and designate others who could act in that role should your choice themselves become unavailable.

You are allowed to establish a time frame for the DPOA. In other words, you can automatically revoke DPOA after a certain time period or forestall the establishment of the DPOA.

The documents then simply need to be notarized. Your attorney will hang on to the DPOA documents.

Setting Up a Living Will

Your attorney can help you set up a living will from scratch. Alternatively, you can find the documents online but you must follow Montana guidelines or the document may not be valid. Typically, those who set up living wills talk to their physician about their options for end of life care. Some will want to specify that they do not want to be placed on a respirator or prolong their lives. Others will want to specify that they want palliative care to ease their passage. The document will need to be signed and notarized. Many opt to give copies to family members and especially those to whom DPOA has been established.


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