What’s the Difference?
Both living wills and health care powers of attorney documents contain information regarding your personal health care decisions. These are considered advance directives because they give instructions to your physicians and family before you become incapacitated. The living will states your specific wishes regarding lifesaving 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 ensures your wishes are carried out.
A health care power of attorney supplements the living will document. The health care 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 and several backup successors. 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 complete a health care 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 can lead to your wishes not being respected, which can cause conflicts within the family. An experienced Arkansas 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 another willing 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 health care power of attorney, it is always best for an experienced attorney to draft these documents. They can be very complex and differ from one individual’s situation to another. If you live in White County, Pulaski County, or Saline County in cities like Benton, Sherwood, and Little Rock, AR, we can customize these very technical documents to help you during stressful times. The last thing you want is for one small mistake to ruin your 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 health care is your personal business, and you have the complete right to make your own health care decisions as long as you are capable. In today’s modern world, you may need medical decisions to be made long after you become incapacitated or incapable of communicating with your health care 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 the person making them must represent your wishes. By completing a health care or medical power of attorney in Arkansas and a 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 health care 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
- 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 an agent or medical power of attorney in Arkansas. An experienced Arkansas estate planning lawyer 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 don’t include a list because we believe it’s too rigid. For example, we learned during COVID-19 about 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.