What Is the Difference Between a Living Will and a Power of Attorney?
written by: Kantha Wijeratne•edited by: Donna Cosmato•updated: 5/20/2011
Do you know the difference between a Power of Attorney and a living will? What are the various reasons for drawing up these legal documents? This article explains these terms and provides information related to their use.
slide 1 of 7
Questions regarding living wills and Powers of Attorney often involve issues relating to health, wealth, and management of daily affairs. Sickness or advancing years often trigger these discussions. Living wills and Powers of Attorney are legal documents that ensure that your concerns are taken care of when you are unable to do so.
slide 2 of 7
What Is a Power of Attorney?
A Power of Attorney is a document by which you, the principal, appoint and instruct an agent to carry out certain duties. Your agent need not be an attorney. For example, a spouse or trusted friend can act in this role. There are four types of Powers of Attorney.
A limited Power of Attorney permits agents to perform specific duties on your behalf. Furthermore, those duties can be specified to only last for a fixed amount of time, and the person assigning the power of attorney chooses the time period.
A general Power of Attorney gives agents broad powers to handle most typical lifestyle situations. It becomes invalid if one becomes incapacitated or dies. This type of document is best avoided as it can lead to misinterpretation. A durable Power of attorney authorizes agents to continue to attend to specified duties even after an individual is incapacitated. A springing Power of Attorney comes into effect only if the person became incapacitated upon the happening of a specified event. The “event" should be clearly defined so as not to lead to disputes among family or caregivers.
A financial Power of Attorney takes care of duties such as paying bills, banking, and investing, and includes real estate matters. Banks may require you and the agent to sign a separate Power of Attorney form conforming to their requirements. The agent also has to sign signature cards to enable him to perform banking needs.
A health care Power of Attorney is used to specify instructions to an agent regarding an individual's health care needs, particularly treatment options, and preferences relating to extending life through technological means. It is this type of Power of Attorney that is referred to as a living will.
slide 3 of 7
What Is a Living Will?
A living will sets out wishes relating to care should one get sick. It states choices of treatments in a situation when life can be prolonged artificially through practices such as resuscitation, intubations, and so forth. Discussing and making known these wishes to loved ones and caregivers has benefits. You have peace of mind knowing that your preferences would be respected in an emergency. Loved ones are freed from making tough decisions about the state of your life. This also saves the expense and time involved with a court appointed guardian or conservator. In essence, a living will ensures that end-of-life wishes are respected.
A term frequently associated with a living will is “advanced directive." An advanced directive comprises a durable Power of Attorney for healthcare and/or a living will. This document can specify how and where you wish to be treated, who will care for you when you are incapacitated, as well as requests relating to organ donations and funeral services.
One disadvantage of a living will is that you are unaware at the time of drawing up such documents as to how science and technology will change the future treatment options available for some diseases and conditions.
slide 4 of 7
Features Common to a Power of Attorney and a Living Will
A Power of Attorney and a living will are both legal documents. Standard forms are available at seniors’ centers, hospitals, and the offices of attorneys dealing with estates. It is best to discuss any specific issues with a lawyer and get one drafted that meets your needs. You need to sign the document as the principal. The agent may also need to sign it. The Power of Attorney must be dated and signed by two witnesses, of whom at least one should be a person who would not directly benefit by the contents of the document.
The validity of both documents end when you die. In contrast, a normal will becomes effective upon your death and the executor appointed by you is responsible for managing your estate.
Both a Power of Attorney and a Living Will are designed to provide peace of mind. However, they can also cause family disputes or be abused. There are instances when one's wishes, especially in a living will, are not honored.
slide 5 of 7
What Problems Can Arise With a Power of Attorney or Living Will?
To be effective, a Power of Attorney or a living will needs to be updated periodically to cover changing situations. If several such documents are drawn up, the most recent one is considered valid. You should cancel previous ones to prevent disputes. If you move to another state, the documents may need to be re-executed to remain valid under the laws applicable in that state. Make sure you inform the agent named in the Power of Attorney of such appointment. If not, this can lead to disputes later on.
There are instances when a Power of Attorney can contain forged signatures or an appointed agent can cause grief or loss by straying beyond the duties specified by you - such as by disposing of real estate or investments or acting for personal gain. Avoid this situation by appointing someone you trust.
Loved ones may have different opinions regarding your health treatment. They would tend to respect your wishes more if you openly discuss your reasons for such choices. Discuss this with your doctor. Provide copies of documents to all concerned. Store the original documents safely, preferably with a lawyer.
slide 6 of 7
A Power of Attorney or a Living Will does not mean that you give up your rights to act for yourself. You can continue to carry out your duties as long as you are able. A Power of Attorney or living will can be changed or revoked at any time. The main consideration for a Power of Attorney is to have peace of mind that someone you trust will carry out your duties or wishes when you are unable to do so.
slide 7 of 7
1. AARP. "Beginning the Conversation About the End of Life",