What is the difference between a Living Will and a Power of Attorney? And do you need either one?
When it comes to estate planning, most people know they need a Last Will and Testament. But we always recommend that you have a financial power of attorney, a healthcare power of attorney, and a living will prepared as well to protect yourself and your loved ones. This way, if you are ever in a situation where you are unable to make decisions for yourself, your loved ones or your doctor will be able to carry out your wishes and take care of you as simply as possible.
Both the Power of Attorney and Living Will are binding legal documents. The validity of both documents continues until your death, but ends upon your death. You should appoint a personal representative in your Last Will and Testament to take care of your affairs upon your death.
Power of Attorney
A power of attorney is a document where you (the “principal”) appoint another person (the “agent”) to carry out certain duties and protect your interests. Your agent does not need to be an actual attorney. In fact, typically a spouse, family member, or trusted friend will act in this role.
You can appoint an agent with specific, limited powers, or you can grant them broad, general powers. A general power of attorney gives the agent broad power to handle any decision that you could make yourself whereas a limitedpower of attorney permits the agent to perform specific duties for a specific amount of time.
The two most commonly used types of powers of attorney are financial and healthcare. A financial power of attorney permits the agent to take care of all your financial decisions and personal affairs. A healthcare power of attorney permits the agent to make decisions about your health care needs.
In contrast, a living will, also known as an “advance medical directive,” sets out your wishes relating to certain end-of-life healthcare decisions for the doctor to carry out. It applies in a very limited situation—when you are in an irreversible coma and the doctor says there is no reasonable medical hope that you will survive. The living will allows you to address whether you want life-prolonging treatments such as resuscitation and feeding tubes or whether the doctor can remove you from life-prolonging treatments.
Okay, but why can't my family or my doctor make all of these decisions? Why do I need a Power of Attorney or Living Will?
Under Tennessee and federal laws, your healthcare rights are very carefully protected. Even if you are married, your healthcare providers cannot release medical information to your spouse without your consent.
This is not usually a problem unless you are in a situation where you are unable to give your consent, either due to a mental incapacity or being unconscious. Of course we hope that never happens, but statistically, we are more likely to be incapacitated in some way tomorrow than to be deceased. And in that situation, unless you have designated an agent in advance, your family will not be able to access your medical information and act in your best interests without obtaining a Conservatorship from the Court, which is expensive, time-consuming, and burdensome.
When it comes to life-prolonging treatments such as feeding tubes being discontinued, if you do not give either your doctor or your agent express written permission to remove you from life-prolonging treatments, they are required to keep you alive as long as possible. If that is not what you want, then you have to specify your desire in advance.
Questions? Call Us First!
Any more questions? Give us a call and schedule a free consultation with one of our attorneys and be sure to ask about our Estate Bundle that includes a Last Will and Testament, Financial Power of Attorney, Healthcare Power of Attorney, and Living Will at a discounted rate.