5 Common Mistakes in Powers of Attorney for Health Care and Living Wills

Learn how to make your health care directives without common mistakes that could cause problems or confusion for your loved ones.

You don’t always need a lawyer to make a medical power of attorney or living will. Most states have free statutory forms, and many health care providers encourage patients to fill out the free forms without getting legal advice. But it’s important to complete the documents correctly, and doing it yourself makes you more vulnerable to common errors.

Mistakes you make while completing your health care directives can cause confusion about your wishes. They can even defeat your directives’ purpose: ensuring your wishes are honored. Thankfully, you can easily avoid most errors if you know about them.

Here are five common mistakes made in health care directives.

1. Not Being Clear About Your Wishes

Use your living will to carefully detail your wishes for medical care. If you don’t, your health care agent will not know what you would have wanted, and this could cause heart-wrenching difficulties for your agent and other loved ones.

The main function of your living will is to document your wishes for health care. This allows your health care agent, your health care providers, your family, and other loved ones to know what medical care you want if you can’t speak for yourself. If you have specific wishes for your health care, the best way to ensure they are honored is to write them down in your living will document.

When you do, include clear and detailed instructions. For instance, do you want to avoid a specific doctor or hospital, or do you have strong feelings about using powerful drugs for pain relief? Take some time to think about what you would want in various medical situations, and talk to your doctor about your options.

To learn more about the medical issues you should address, see What Do a Living Will and Power of Attorney for Health Care Cover?

Many simple fill-in-the-blanks health care directives (like state statutory forms) do not ask for detailed information about specific health care wishes. This makes it easy to complete the form with too little information. Most forms do provide blank spaces to write in any wishes not covered by the form, so take the time to research your wishes and write your choices into the form yourself if needed.

Write down your wishes in detail even if you think your family knows them already. They may know less than you think, they may not think clearly in times of stress, years or even decades may have passed, and circumstances change. So when the time comes to use your health care directive, your family members might honestly disagree about what you would want. By writing down your wishes, you can avoid confusion and conflict during what may be a terrible time for your loved ones.

2. Not Talking to Your Agent About Your Wishes

After you’ve created your health care directives, review your power of attorney for health care and living will with your agent. Your agent’s understanding of your wishes determines the care you receive if you can’t speak for yourself, so you want to make sure you’re on the same page.

Don’t just give your health care agent a copy of the document without having this conversation. Your agent might not understand the document the same way you do.

Don’t let this be a one-and-done conversation, either. As time goes on and circumstances change, your wishes may change too. Even if they don’t, you should reaffirm them with your agent so that you’re both always confident your agent understands the health care you want to receive.

3. Not Giving Your Agent Certain Specific Powers

In some states, if you want your agent to have certain specific powers, you must make it explicit in your power of attorney document. Many people don’t understand these limitations, and this can cause problems down the road.

One example is the power to admit you to a nursing home on a permanent basis, not just for temporary recuperative stays. In some states, if your document says only “my agent can admit me to a nursing home,” your agent will not be able to admit you to a nursing home on a permanent basis, even if that’s what you need. The only option then is to petition a court for guardianship.

Another example is the power to make health care decisions while you are pregnant. If you want your agent to have this power, in many states you must be clear about this wish in your power of attorney.

It’s important to know which powers must be stated explicitly in this way so you can make an informed decision to include them or not. If you have specific concerns or questions about this, your best bet is to get help from an attorney who is experienced with your state’s requirements.

4. Not Having Your Power of Attorney for Health Care or Living Will in Your Medical Record

The best way to ensure your wishes are honored is to have a copy on file with any health care provider you see regularly. The best power of attorney for health care or living will in the world won’t do you any good if your health care provider doesn’t know about it. Many people execute documents on their own or with an attorney and then leave it at home with their other estate planning documents. They assume it will be available if it’s ever needed.

In an emergency, however, your health care provider will need to see your power of attorney or living will document right away. Your agent’s copy might be lost. You might have lost yours. Or it might be impractical to go get it.

Give it to your doctor and your provider’s medical records department. A photocopy works fine.

5. Not Executing the Document Properly

States have different requirements for validly executing a power of attorney for health care. Know your state’s requirements to be sure yours is done properly.

Often there are limitations on who can be a witness, and many people don’t understand these or ignore them. Other problems arise if you must direct another person to sign for you, or if not all the witnesses and notary (if required) are present when you sign.

If your document requires a notary, ensure the seal shows up on photocopies. A poor-quality copy might make the seal illegible or nearly invisible.

For your state’s requirements, see Finalization Requirements for Health Care Directives.

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