If you’re in the middle of developing a comprehensive estate plan, you might be wondering whether you really need all those different documents.
What’s a trust? How many of these documents do I need? What’s a Medical POA vs Living Will? Do I really need all of these documents?
While it might seem like all those estate planning documents are unnecessary, there’s a world of difference between a Medical POA and a Living Will. And which one(s) you end up with will depend on your preference.
What is a POA?
A power of attorney, commonly called a POA, is a legal document that allows you to appoint a person(s) or organization to make decisions on your behalf.
POAs allow you to appoint a trusted individual to be in charge of your affairs in the event that you are unable to deal with them yourself. There are many reasons why you would not be able to handle your own affairs, but health-related issues are probably the most common.
In the event that you are rendered unconscious, in a coma, develop dementia, or experience another condition that prevents you from being able to make your own healthcare decisions, the agent (also called your “attorney-in-fact”) would be able to step in.
A POA becomes valid as soon as it is signed and—if it is a Durable Power of Attorney—the document will remain valid even after you are mentally incapacitated.
What is a Living Will?
On the other hand, a Living Will, sometimes known as an Advance Healthcare Directive, is a document listing your own medical decisions regarding your future (hypothetical) care.
Much like POAs, Living Wills are executed so that your healthcare wishes can be made known in the event that you are not able to advocate for yourself. For instance, if you go into a coma, you would not be able to communicate to your doctors whether or not you want to remain on life support. But a Living Will would clear up any disagreements that might crop up among your friends and family members.
Because the very nature of a Living Will depends on your being incapacitated, Living Wills only become valid once you fall into a coma or other state in which you cannot communicate with others.
POA vs Living Will: What They Allow
Whereas both documents are useful in the same type of situation (that is, your mental incapacitation), there are some significant differences in what each one allows.
A Living Will is limited only to those decisions affecting your end of life care in the event that you cannot communicate those wishes yourself. Your Living Will can spell out your decisions regarding life support, the type of medical care you want to receive, and even whether you want to receive pain medication.
POAs allow your agent to make decisions regarding any and all arenas of your life: financial, healthcare, legal, etc. If you would like to limit powers to only those regarding your healthcare, you can execute a Healthcare POA. If you want to include other powers, you can include them in the POA. The document may allow as much or as little as you wish.
The biggest distinction is that the POA will allow your agent to make healthcare decisions for you according to their own judgment. With a Living Will, you make your own decisions ahead of time and your agent must abide by them.
Choosing an Agent
As with any legal document involving an agent or proxy, you should choose someone trustworthy and responsible who you can be assured will follow your wishes. However, if you are creating a POA, you have an additional reason for caution.
POAs go into effect as soon as they are signed and notarized, so your agent could legally act on your behalf (in whatever matter the POA allows) at any time. Remember, the purpose of a POA is to give someone control over your affairs when you are unable to speak for yourself; your direct permission is not required on a case-by-case basis.
Not only that, but POAs allow your agent to do far more than a Living Will does. With a Living Will, the decisions are restricted to your healthcare needs only. A General POA, on the other hand, allows your attorney-in-fact to make decisions regarding real estate, bank accounts, and more.
As with any legal document, it is best that you choose an agent that you trust and that has your best wishes at heart.
Which Do You Need?
So, POA vs Living Will…which one should you choose? Each document has its own set of pros and cons which may help you make your decision.
A Living Will covers only matters related to your healthcare, not any other situations that may arise if you are physically or mentally incapacitated. This document only goes into effect in the event that you are not able to make decisions for yourself and the person you choose as your agent is bound by whatever is listed in your Advanced Healthcare Directive; they cannot make decisions on your behalf.
With a POA, however, the document goes into effect immediately, whether you are incapacitated or not. You can give your attorney-in-fact powers over other areas of your life; after all, in the event you become incapacitated your financial affairs will still need to be taken care of. A POA will allow your attorney-in-fact to handle matters relating to your real estate, bank accounts, and other affairs as well.
The good news is, you don’t have to choose. You can have both a POA and a Living Will if you choose. The attorney-in-fact named in your POA will be allowed to make decisions regarding your healthcare, but they must follow any direct wishes that you made. If you created a Living Will, they will be obligated to follow the wishes laid out in the Living Will.
So, why would you need both? Why have a POA at all?
For one, having an attorney-in-fact to deal with other life decisions would take a huge burden off other members of your family, who might struggle to decide or agree on financial issues. You can have a single trusted individual handling all aspects of your life when you are unable to.
Furthermore, a POA covers any gaps that your Living Will might have left out. As thorough as you are, nobody can predict every eventuality. In the event a situation arises that was not specifically stated in your Living Will, your attorney-in-fact would be able to make a decision for you.
Making these sobering healthcare decisions regarding these hypothetical—but serious—situations is not pleasant to think about, but it is necessary.
Giving your friends and family peace of mind regarding your end-of-life care is all part of creating a comprehensive estate plan that you can feel comfortable with. When you execute these legal documents with Papers Services, you can rest easy knowing that you made the best decision for you and your family.