What is a living will and durable power of attorney

A power of attorney (POA) authorizes someone else to handle certain matters, such as finances or health care, on your behalf. If a power of attorney is durable, it remains in effect if you become incapacitated, such as due to illness or an accident.

Durable powers of attorney help you plan for medical emergencies and declines in mental functioning and can ensure that your finances are taken care of. Having these documents in place helps eliminate confusion and uncertainty when family members have to make tough medical decisions.

Power of attorney vs. durable power of attorney

A power of attorney allows someone else to handle your legal, financial, or medical matters. General powers of attorney cover a wide range of transactions, while limited powers of attorney cover only specific situations, such as authorizing a car dealer to register your new vehicle for you.

An ordinary power of attorney expires if you become mentally incompetent, while a durable power of attorney includes special wording that makes it effective even if that happens.

The purpose of a durable POA is to plan for medical emergencies, cognitive decline later in life, or other situations where you're no longer capable of making decisions.

General durable power of attorney definition

A general durable power of attorney both authorizes someone to act in a wide range of legal and business matters and remains in effect even if you are incapacitated. The document is also known as a durable power of attorney for finances. The POA can take effect immediately or can become effective only if you are incapacitated.

The person you appoint is known as your agent, or attorney-in-fact, although the individual or company doesn't have to be a lawyer. An attorney-in-fact can handle many types of transactions, including:

• Buying and selling property
• Managing bank accounts, bills, and investments
• Filing tax returns
• Applying for government benefits

If you become incapacitated and don't have a general durable power of attorney, your family may have to go to court and have you declared incompetent before they can take care of your finances for you. So it's a good idea to have one in place—just in case.

Durable power of attorney for health care

A durable healthcare power of attorney is useful when a medical emergency leaves you unconscious or otherwise unable to make choices about your care. It appoints someone else to communicate with doctors and make medical decisions for you.

Such a document differs from an advance directive, or living will, which details the treatment you want if you are at the end of your life and can no longer communicate. A healthcare power of attorney, on the other hand, names someone to make medical decisions any time you are unable to do it yourself, even if you are expected to make a full recovery.

Obtaining and removing a power of attorney

You can find DIY durable power of attorney forms online. However, it's helpful to talk to an attorney about your estate planning needs so they can recommend the documents that will work best for your particular situation.

If you hold power of attorney for someone else, bring a certified copy of the document with you when you conduct business or communicate with healthcare providers. If you're signing documents as power of attorney, use your name and then indicate that you're signing as power of attorney. Ask about the preferred format before you sign.

You can revoke your power of attorney at any time, as long as you're mentally competent. You should do this in writing. It's also a good idea to notify financial institutions and other businesses that your attorney-in-fact has dealt with.

The question of who can override a power of attorney for a loved one is more difficult. If you believe someone is abusing their position as power of attorney, you may be able to take legal action to have them removed. An attorney with experience in both estate planning and elder law can help.

Planning for the uncertain future is a complex process. Most people believe that drawing up a will is sufficient, but several other documents are necessary to create a comprehensive estate plan that will safeguard a senior’s health and finances.

A reputable elder law attorney can assist with creating a personalized plan, but it is helpful to familiarize yourself with some basic legal forms and documents before estate planning begins.

Definitions of Commonly Used Estate Planning Documents

Will

A last will and testament indicates how a person’s assets (estate) will be distributed among beneficiaries after they pass away. The writer of the will (known as the testator) can also specify an individual (known as the executor or personal representative) to manage the probate process and distribution of the estate. A will does not take effect until the testator dies.

Advance Directives

Advance directives are written instructions and preferences for future medical care in case you are unable to make or communicate decisions (for example, if you are unconscious or mentally incapacitated). These are also called health care directives. There are a few different forms and documents that can be used to articulate one’s health care preferences.

Living Will

Unlike a traditional will explained above, a living will only applies while a person is alive. A living will goes into effect when the person who wrote it is no longer able to communicate their wishes for health care or competent to make such decisions. This document is a type of advance directive that describes how a person wants their emergency care and/or end-of-life care to be managed.

Many people have strong opinions regarding life support, and a living will allows one to specify which life-sustaining procedures one does or does not want. It is important to be specific when composing a living will, but it is not possible to describe preferences for all medical scenarios. Working with a physician and an elder law attorney will ensure that these instructions are clearly articulated and the document meets specific validity requirements in one’s state of residence.

Do Not Resuscitate (DNR) Order

A DNR form is completed by a physician or health care provider stipulating that a patient does not wish to receive life-prolonging treatment if cardiac arrest or respiratory arrest occur. These procedures include CPR, intubation, use of a ventilator, defibrillation and other related methods of resuscitation.

Obtaining a DNR does not affect the provision of other medical treatments or care. DNR forms are typically completed by a physician at a patient’s direct request or in accordance with a patient’s living will or other advance directives. DNRs are often obtained by individuals with a terminal illness, those who are opposed to certain life-saving measures, and those who are at risk of cardiac or respiratory arrest.

Read: What Is a Do-Not-Resuscitate Order and How Does It Work?

Physician Orders for Life-Sustaining Treatment (POLST)

Some states have replaced or supplemented DNR orders with POLST forms. They are very similar, but POLST forms go into further detail regarding specific treatments such as antibiotics and feeding tubes. Like DNR orders, POLST forms are intended to be a condensed version of your living will that medical professionals can quickly and easily consult when deciding on a plan of care.

Read: POLST Programs: When Advance Directives Aren’t Enough

Powers of Attorney

Power of attorney (POA) documents allow a person (the principal) to give a trusted individual (the agent) the ability to make decisions on their behalf. A POA can be written to grant an agent the ability to act in very broad terms or to only take specific actions. This document can also be customized to take effect upon its creation (durable POA) or upon the principal’s incapacitation (springing POA). If a person becomes incapacitated without drawing up POA documents, their family members may have to go through the long and expensive process of seeking guardianship or conservatorship to be able to manage their affairs.

Read: How to Get Guardianship of a Senior

In addition to the various terms that are possible for a POA document, there are two general areas in which powers of attorney are granted: health care and finances.

Health Care Power of Attorney

A health care POA document gives a designated person the authority to make medical decisions on behalf of the principal. A medical POA essentially gives someone you trust the ability to oversee your medical care and ensure that your advance directives are followed if you become incapacitated. Without appointing a POA for health care, your family members may not be able to access your medical information or actively participate in decision making. Medical POA is sometimes referred to as a health care proxy.

Financial Power of Attorney

This type of POA document gives a designated person the authority to make legal and/or financial decisions on behalf of the principal. When someone becomes incapacitated, whether permanently or temporarily, bills and other financial matters do not stop. Without a financial POA, bills may go unpaid and family members may not be able to access accounts to cover health care costs.

The type and extent of an agent’s powers are entirely customizable. For example, the agent may be authorized to manage all of a principal’s finances and property, or they may only be able to oversee certain investments or transactions.

Consult an Elder Law Attorney to Create an Estate Plan

While there are many resources available to help families plan for the future and navigate legal issues, an experienced elder law attorney can learn about your situation and recommend the best course of action. To find a legal professional near you, visit AgingCare’s Elder Law Attorney Directory.

What is the best power of attorney to have?

Does a durable power of attorney need to be notarized in Kansas?

What is difference between will and power of attorney?

What is a Living Will in Illinois?