What’s the Difference?
Both Living Wills and Healthcare Powers of Attorney documents contain information regarding your personal healthcare decisions. These are considered advance directives because they give instructions to your physicians and family prior to the time you become incapacitated. The Living Will states your specific wishes regarding the removal of medical care if your doctor believes there is no chance of recovery. Many individuals remember the Florida case of Terri Schiavo. Her family fought from 1990 to 2005 (even appealing to the United States Supreme Court) regarding her end-of-life wishes. While the state legislature in Arkansas has a better statute now, only a customized document will ensure your wishes are carried out.
A Healthcare Power of Attorney supplements the Living Will document. The Healthcare Power of Attorney gives someone else the power, and responsibility, to make all of your personal health care decisions, including any wishes stated in your Living Will, when you are unable to make those decisions for yourself.
TIP. Everyone over the age of 18 needs healthcare directives. Strokes and car wrecks can occur at any time. We often recommend naming one person serving at a time with as many backups to serve successively. In blended families, it is not uncommon for the spouses to name their biological children as their agents instead of each other. In our experience, most families know exactly who they trust, especially among their children. The truth is no one knows your family better. In some cases, however, it is helpful to discuss your options with an attorney who is willing to listen and offer advice and assurance to your decisions.
Who Should Have a Living Will and Medical Power of Attorney?
Every person over the age of 18 should have completed a Healthcare Power of Attorney, as well as a Living Will. Unfortunately, we never know what life holds for our future, so it’s always a great idea to remain prepared for any possibility.
How Do I Get a Living Will?
A Living Will requires lots of thought, and can take a while to complete. Selecting the wrong person as Agent can mean that your wishes are not respected, which can cause conflicts within the family. An experienced Estate Planning Attorney will assist you in making the right decisions for both you and your family.
TIP: Arkansas law requires physicians to follow your living will or transfer you from their care. In fact, physicians can be criminally prosecuted for failing to follow your wishes or transferring you to an agreeable physician.
Does an Estate Planning Attorney need to Draft a Living Will and Healthcare POA, or Can I Do It Myself?
While it’s not a legal requirement that an attorney draft your Living Will and Healthcare Power of Attorney, it is always best for an experienced attorney to draft these documents as they can be very complex, and can differ from one individual’s situation to another. These are very technical documents used during stressful times; the last thing that families want is for one small mistake to ruin their parent’s or grandparent’s legacy.
TIP: Many hospitals and clinics offer HIPAA waivers and documents similar to a living will prior to major surgeries or being seen by the physician. They actually bill insurance companies for these discussions with patients. However, these documents may be limited to one clinic or for a short stay in a hospital. A properly drafted and executed healthcare plan will ensure you are protected no matter what hospital or clinic you visit.
What Should Be Included in a Health Care Power of Attorney and Living Will?
Your healthcare is your personal business, and you have the complete right to make your own healthcare decisions, as long as you are capable. In today’s modern world, you may need medical decisions to be made long after you are no longer competent or capable of communicating those with your healthcare provider. These situations can arise as the result of an accident or unexpected illness, leaving decisions such as what doctor should care for you, what treatment protocol to follow, and refusing medical care up to someone else. These can be tough decisions, and it’s important that the person making them represents your wishes. By completing a Health Care Power of Attorney and Living Will, you can voice your wishes, select the person who will speak for you (your Agent), and give that person guidance on how to make these decisions. A properly drafted Health Care Power of Attorney and Living Will should:
- Appoint an Agent who can make healthcare decisions for you if you are ever unable to make them for yourself;
- Give that person power under HIPAA to review your medical records, as well as gather information from your medical team;
- Provide your Agent guidance as to what your personal wishes are for your medical care; and
- Give your Agent the power to agree with your medical team to stop providing you medical attention if you are in a continued vegetative state or some other type of terminal condition.
With all of these details in mind, know that not every person is able or willing to serve as a Medical Power of Attorney Agent. An experienced attorney can determine your Agent’s eligibility and draft a Living Will and Medical POA that respects and properly communicates your wishes.
Tip: There are many different types of healthcare advance directives. While some forms include a list of items to withhold such as ventilators and feeding tubes, our forms do not include such a list because we believe it is too rigid. For example, we learned during COVID-19 of the importance of ventilators. We believe the best practice is to name trusted individuals to assess your specific needs to determine the best course of action.
At McClelland Law Firm, we believe that limiting our practice areas provides the greatest value to our clients. To us, value means providing exceptional service and efficient processes for each of our practice areas.
We are committed to compassionate representations, especially as it relates to elder law. No one should feel pressured, controlled, or “talked down” to in any meeting. Every client deserves to be heard and understood.