If you’ve ever wondered what the difference is between a health care power of attorney and a living will, you’re not alone. Many people believe that these documents are one in the same when in fact they can be very different things. As a follow up for the inquisitive mind – which do you need?
The law in Pennsylvania governing health care powers of attorney and living wills is located in Chapter 54 of the Pennsylvania Decedents, Estates, and Fiduciaries Code (starting at 20 Pa.C.S.A. §5421). Three terms I often hear used interchangeably are defined in §5422 – “advance health care directive” (also commonly known as advance directive), health care power of attorney, and living will.
Advance health care directive is defined as “a health care power of attorney, living will or a written combination of a health care power of attorney and living will.
Health care power of attorney is defined as “a writing made by a principal designating an individual to make health care decisions for the principal.”
Living Will is defined as “a writing made in accordance with this chapter that expresses a principal’s wishes and instructions for health care and health care directions when the principal is determined to be incompetent and has an end-stage medical condition or is permanently unconscious.”
According to the law in Pennsylvania, then, an advance health care directive can be either a health care power of attorney or living will or a combination of both of them in one document.
Health Care Power of Attorney vs. Living Will
The key difference between a health care power of attorney and living will is that the health care power of attorney is broader. In other words, the document has effect in more situations. While a living will provides instructions that cover what care is to be provided in the event of incompetency and an end-stage medical condition or permanent unconsciousness, a health care power of attorney appoints an agent to make decisions for the principal in the event of incapacity or incompetency whether or not the situation occurs at the end of life.
I find that an example often helps my clients understand the difference between the two documents. Pretend for a moment that you’re in an accident that causes you to lose consciousness for a period of time. Your injuries are such that you will be able to recover, however, for the short term you are unable to communicate your desires to your attending physician. This is a circumstance where your agent under a health care power of attorney will have the ability to make a decision for you if you’ve taken the time to draft the document.
Under the same circumstances, a living will would have no effect because you do not have an end stage medical condition or are permanently unconscious.
What Document Do You Need?
I consider a health care power of attorney to be absolutely vital. I feel so strongly about this, in fact, that I believe anyone over the age of 18 should really one so that it is clear who can make health care decisions for them if they are unable to do so.
If you have strong opinions about what type of treatment you wish to receive at the end of your life, then I also consider a living will to be vital. This statement stands whether you want all possible treatment to be rendered under those circumstances or if you would prefer comfort care at that time. It is important to remember that a living will may be drafted in a number of different ways. Although most often it is used to make it known the signer does not want certain kinds of treatment at the end of their life, the opposite may be true as well. Some clients want all possible treatment rendered to them even at the end of their life. A living will is an appropriate vehicle to state that wish as well.
A Family Conversation is Priceless
When I counsel my clients on preparation of their health care power of attorney and living will, I advise them to have a family conversation about their wishes as well. While it is very true that having your wishes in writing is vital, I am also a firm believer that a family conversation should be part of the overall planning process. Having a conversation in addition to the writing helps avoid confusion and can help all of the major players in your circle of trust get on the same page.
It is important to remember that although having a conversation about the end of your life may be uncomfortable for you and your family members, it can help you in many ways. Health care powers of attorney and living wills are meant to cover a broad array of circumstances but not every circumstance could possibly be anticipated by a static document. By being clear about your wishes with your family, they will have more clarity on what you truly want in certain circumstances and in turn they will hopefully act with confidence and be relieved of guilt when those circumstances arise.
A Family Conversation is Priceless
If you have not taken the time to prepare a health care power of attorney and/or living will, or your current documents are more than 5 years old, it’s time to meet with an attorney to discuss the best options for you and your family. An attorney at the Law Offices of Lutz & Petty would be honored to provide you with a free consultation to discuss this important issue.
For your free consultation, contact us at (570) 218-4888.