Living Will vs. Health Care Power of Attorney

How does someone decide between a living will or a health care power of attorney? Both documents are applicable to health care decisions, but both serve different functions. To understand the difference, the creator of the documents, known as the principal, must evaluate their health care goals and desires, and how these documents will affect these wants and needs.  

A living will, not to be confused with a last will and testament, is a document that lists a principal’s wishes regarding life-sustaining treatment, such as artificially or technologically supplied nutrition and hydration. The living will can dictate that these care measures can be withheld or withdrawn if the principal is unable to make informed medical decisions and the principal is in a terminal condition or permanently unconscious.  

A living will requires the principal to either be permanently unconscious or have a terminal condition. These states are defined and determined as follows: 

Permanently Unconscious State means an irreversible condition in which the patient is permanently unaware of himself or herself and surroundings.  At least two physicians must examine the patient and agree that the patient has totally lost higher brain function and is unable to suffer or feel pain. 

Terminal Condition means an irreversible, incurable and untreatable condition caused by disease, illness or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a declarant’s attending physician and one other physician who has examined the declarant, both of the following apply: 

(a) there can be no recovery and

(b) death is likely to occur within a relatively short time if life-sustaining treatment is not administered. 

If all these conditions have been met, the living will directs the principal’s physician to let them die naturally, providing the principal only with comfort care.   

If a person cannot make healthcare decisions and is terminally ill or permanently unconscious, the attending physician must seek an order from the county probate court to determine whether to withdraw food or liquids.  The court will order withdrawal of food or liquids only if one of the following is clearly shown:  

(a) you had previously stated that is what you want; or  

(b) this is the decision you would have made, based on your lifestyle and character.  If an individual is in the final stages of a terminal illness, next of kin may consent to the withdrawal of artificially supplied food or hydration without a court order.  

A health care power of attorney allows the principal to authorize a person or persons to serve as an agent to make health care decisions on the principal’s behalf if the principal cannot make these decisions on their own.  

In addition, a health care power of attorney can come into play outside of a permanently unconscious or terminal state. The agent or agents can make health care decisions if the principal is intoxicated, delirious, severely depressed, comatose, or experiencing another form of impairment that may leave the principal lacking in capacity to make health care decisions on their own. 

If a person is unable to make health care decisions and does not have a health care power of attorney, generally, the decision regarding medical treatment is determined by next of kin.  The priority order is the spouse, majority of adult children, parents, most adult siblings, or other nearest relatives. 

In the case that a principal has both a Living Will and Health Care Power of Attorney, the living will takes precedence.  

Whether you decide a health care power of attorney or a living will is best for you, we at Demarest & Demarest can help. Feel free to reach out to us and we can schedule an appointment to talk more about these options and what would be best for not only you, but your family.