Planning For Your Incapacity: Living Wills and Durable Powers

An important part of estate planning is determining what you want to happen in the event you become terminally ill or incapacitated to the extent that you are unable to care for yourself. To make your wishes known, you should have ready a living will and durable power of attorney for healthcare, and a power of attorney for your financial matters.

What is a "living will"?

A living will is not really a will and does not dispose of your property, but instead is an instrument that states your wishes for your care in the event that you become terminally ill or permanently unconscious. Through a living will you can state whether you want any type of treatment to prolong your life, reduce pain, or provide nourishment.

What is a "durable power of attorney for healthcare"?

A durable power of attorney for healthcare names a person (called an "agent") who will be responsible for making decisions on your behalf if you become incapacitated and unable to care for yourself. The power becomes effective when you are determined to be incapacitated.

I don't understand how the two differ - aren't they really the same?

No. A living will does not name an agent and applies only if you become terminally ill. A durable power of attorney for healthcare is much broader and gives the agent full decision-making authority with respect to a wide variety of situations involving your medical, surgical, hospital and related care.

What about my financial affairs - who manages those if I become ill or incapacitated?

You should execute a power of attorney for financial matters, which will designate a certain person of your choice to handle your financial affairs in the event you become ill or incapacitated. The person you name will then be able to perform a many duties such as paying your bills, managing your bank accounts, and investing your assets.

How are these instruments created?

Generally, they must be in writing, signed by you, and witnessed by two people. Although you can fill out a generic form for a power of attorney or living will, you should still have it reviewed by an attorney to make sure it meets your state's requirements.

TIP: It is a good idea to give a copy of the document to your doctor, a family member, or the person you name as agent.

Can I ever revoke the living will or power of attorney?

Yes. Either document can be revoked in much the same way that you would revoke an ordinary will (i.e., destruction, written revocation). Many states even permit oral revocations.

Who can be my agent under a durable power of attorney for healthcare?

You can name almost anyone to be your agent, though some states prohibit you from naming family members or your doctor.

What types of decisions regarding my care will the agent be able to make?

You have the power to limit or specifically name the powers given to your agent in the instrument that creates the durable power, but the agent's decision-making authority is generally quite broad. It includes any decision that is related to your care, such as whether to decline or consent to medical care, access your medical records, select your doctors, or admit you to a hospital.

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