A Living Will (often called an Advance Decision or an Advance Directive) is a record of your choices on your health and care needs, if you were to lose your mental capacity. Wealth Advisor’s recent article simply asks, “Living Will or Lasting Power of Attorney?” The article explains that a Lasting Power of Attorney (LPA) is a delegation to give other individuals the power to make health and care decisions on your behalf, in the event that you were to lose mental capacity. You can have both a Living Will and a Lasting Power of Attorney. However, the order in which the documents are signed, impacts their validity.
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 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.
You also should think about who has control. With a Power of Attorney, your designated agent can make decisions about life-sustaining treatment, not you. With a Living Will, you’re still in control because you’ve stated your thoughts and direction about your treatment and end-of-life care.
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Jeffrey Bellomo, Esq.