Living Wills and Powers of Attorney for Health Care: An Overview

If you're like most people, you aren't eager to spend time thinking about what would happen if you became unable to direct your own medical care because of illness, an accident, or advanced age. However, if you don't do at least a little bit of planning—writing down your wishes about the kinds of treatment you do or don't want to receive and naming someone you trust to oversee your care—these important matters could wind up in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer.

Types of Health Care Documents

There are two basic documents that allow you to set out your wishes for medical care: a living will and a durable power of attorney for health care. It's wise to prepare both. In some states, the living will and the power of attorney are combined into a single form—often called an advance directive. (In fact, both of these documents are types of "health care directives"—documents that let you specify your wishes for health care in the event that you become unable to speak for yourself.) To find out the name of your state's health care documents, see What Health Care Directives Are Called in Your State.

Two other types of health care documents allow you to declare your wishes in emergency situations: Do-Not-Resuscitate (DNR) orders and Physician Orders for Life-Sustaining Treatment (POLST) forms. These are typically made by those who have a terminal illness or are approaching the end of their lives.

Living Wills

First, you need a written statement that details the type of care you want (or don't want) if you become incapacitated. This document is most often called a living will, though it may go by a different name (such as a "health care declaration") in your state. (Note that a living will bears no relation to the conventional will or living trust used to leave property at death; it's strictly a place to spell out your health care preferences.)

You can use your living will to say as much or as little as you wish about the kind of health care you want to receive. (For more details, see What Do My Living Will and Power of Attorney for Health Care Cover?)

Powers of Attorney (POA) for Health Care

You'll also want what's usually called a durable power of attorney for health care. In this document, you appoint someone you trust to be your health care agent (sometimes called an attorney-in-fact for health care, health care proxy, or surrogate) to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive.

(If you need help picking the right person for this job, see Choosing Your Health Care Agent.)

Who Can Make Health Care Documents

You must legally be an adult (18 years old in most states) to make a valid document directing your health care. You must also be of sound mind—that is, able to understand what the document means, what it contains, and how it works.

When Your Health Care Documents Take Effect

Your health care documents won't take effect until your doctor determines that you lack the ability—often called the "capacity"—to make your own health care decisions. Lacking capacity usually means that:

• you can't understand the nature and consequences of the health care choices that are available to you, and
• you're unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Practically speaking, this means that if you are so ill or injured that you can't express your health care wishes in any way, your documents will immediately go into effect. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care agent or close relatives) will decide whether it's time for your health care documents to become operative.

Living Wills and Medical Powers of Attorney That Are Effective Immediately

In some states, it's possible to give your health care agent the authority to manage your medical care immediately, rather than waiting until you are incapacitated. If your state allows this option, you may prefer to make an immediately effective document so that your agent can step in to act for you at any time, without the need to involve a doctor in the question of whether or not you've reached the point of incapacity.

Making your document effective immediately won't give your agent the authority to override what you want in terms of treatment; you will always be able to dictate your own medical care if you have the ability to do so. And even when you are no longer capable of making your own decisions, your health care agent must always act in your best interests and diligently try to follow any health care wishes you've expressed in your living will or otherwise.

When Your Health Care Documents End

Your written wishes for health care remain effective as long as you're alive, unless you specifically revoke your documents or a court steps in (but court involvement is very rare). Here are a few specifics about when your health care documents are no longer effective:

• You revoke your document. You can change or revoke a health care document at any time. State laws vary as to exactly how you can revoke your document. In some states, you can physically destroy the document or simply tell your health care provider, or you can make a new one. Regardless, make sure your health care providers and your agent know that you have revoked the document, and that the revoked document is no longer on file.
• A court invalidates your document. Most judges recognize that a court is normally not the right place to make health care decisions. However, if your health care is the subject of a dispute and someone questions the validity of your health care directives, the matter may end up before a judge. For example, if someone doubts that you had the mental capacity to prepare a health care document, that person can ask a court to invalidate your document. Such lawsuits are rare, but they do sometimes occur. The burden of proving that you were not of sound mind when you made your document falls on the person who challenges its validity. (In other words, the law presumes that you had the mental capacity to make your health care documents.)
  
  It's also possible that a court could invalidate your document if it wasn't properly completed—for example, if you didn't meet your state's requirements for having the document notarized or witnessed. If this happens, however, it's still likely that any wishes for health care you set out in the document will be followed—as long as they're clearly expressed and you were of sound mind when you wrote them. In the famous case of Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the U.S. Supreme Court said that any strong evidence of someone's wishes for care should be honored. Your directions won't be ignored simply because of a technical error.

• A court revokes your agent's authority. If, after your health care documents take effect, someone believes that your health care agent is not acting according to your wishes or in your best interests, the concerned person can go to court and ask for an investigation of your agent's behavior. If a court finds that your agent is acting improperly and revokes your agent's authority, the job will go first to an alternate agent you named in your document. If there is no available alternate—or if the court invalidates your entire document for one of the reasons discussed just above—a conservator or guardian will be appointed to make health care decisions for you.
• You get a divorce. Getting divorced has no effect on your written directions for health care (that is, your living will). But if you named your spouse as your health care agent and then get divorced, your ex-spouse's authority is automatically revoked in a number of states. In that case, if you named an alternate agent, that person will take over. If you do get a divorce, it's wise to eliminate confusion by making a new document, even if you named an alternate agent.
• After your death. Generally, your health care documents are no longer necessary when you die. In some states, however, your health care directives remain effective after your death for some very limited purposes. Your agent may be permitted to supervise the disposition of your body, including authorizing an autopsy or organ donation, unless you specifically withheld these powers when you made your health care documents.

Tips for Making Your Living Will and Power of Attorney for Health Care

When you create your health care documents or advance directive, you want to take the time to make it as ironclad as possible. In particular, avoid some common mistakes and be sure to:

• Be as clear about your wishes as possible. If you have specific wishes for your health care, 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. Even if you use a simple fill-in-the-blank living will or health care declaration (like a state statutory form), most forms do provide blank spaces to write in any wishes not covered elsewhere in the form. 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 may have changed. By writing down your specific wishes, you can avoid heart-wrenching confusion and conflict for your loved ones.
• Discuss your wishes with your agent. After you've created your health care documents, 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. Don't just give your health care agent a copy of the document without having this conversation, since 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.
• Put a copy of your health care documents on file in your medical records. Place a copy of your living will and POA for health care on file with any health care provider you see regularly. The best health care directives in the world won't do you any good if your doctor doesn't know about it. Many people execute health care documents on their own or with an attorney and then leave the documents 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 right away. It might be impractical to go get it. Or your agent's copy might be lost. So give a copy to your health care provider to keep on file.

For step-by-step guidance while creating health care documents that are valid in your state, try Nolo's Quicken WillMaker.

To learn more about health care documents, visit our Living Wills & Medical Powers of Attorney section.