While the names sound familiar, a Living Will is not the same as a Will, and a Lasting Power of Attorney is not the same as a Power of Attorney. You’ll want to know what these documents are, and what they can and cannot do for your estate plan.
A recent article in Wealth Advisor, “Living Will or Lasting Power of Attorney?” does a good job of explaining these two documents. The Living Will, which is also referred to as an Advance Decision or Advance Directive, is document that conveys your wishes regarding health and care needs, in the event that you no longer have mental capacity to convey those choices to those around you. The Lasting Power of Attorney delegates the power of making health and care decisions on your behalf to another individual, in the event that you don’t have the capacity to do so. They are similar but different, and it’s important to note that if you have them both, the order in which they are signed has an impact on which one is valid.
It is important that you speak with your estate planning attorney about your objectives for these documents, the amount of discretion you want your family and medical professionals to have, as well as the implications of creating both documents.
A Living Will can give you some peace of mind about your health and care needs. It can be especially important if you hold strong views about a health situation or if you have a life-limiting illness and want to be certain that your wishes are met. You can also state your views on life-sustaining treatment.
If I have a Living Will, why do I need a Lasting Power of Attorney? A Living Will can only record your wishes as to medical treatment. However, a Lasting Power of Attorney records your wishes about medical treatment, as well as your thoughts on other matters, like where you live and other general needs. Remember, however, that the Lasting Power of Attorney appoints your agent to make these decisions for you.
If your views about life-sustaining treatment change and/or there are material developments in health care opportunities, your valid Living Will is going to be executed. This is despite the fact that your views later change, if you didn’t change the document.
With a Lasting Power of Attorney, you can state your preferences to your agent. If your views change over time, then your agent will be able to decide if your wishes were based on past instructions or more recent developments.
Another thing to consider before having these documents finalized: who do you want to have control? The Living Will provides you with the opportunity to share your wishes for treatment and end-of-life care. The Lasting Power of Attorney gives a designated agent the power to make the decisions about life-sustaining treatment.
Reference: Wealth Advisor (September 21, 2017) “Living Will or Lasting Power of Attorney?”