When used together, health care powers of attorney, living wills, and powers of attorney can be powerful tools to ensure that your legal and medical wishes are followed if you are unable to implement them yourself. These documents offer relatively inexpensive alternatives to expensive guardianship procedures for disabled loved ones.
Legal power: A power of attorney is a legal instrument that allows a person of your choice (agent) to carry out your affairs if you are legally “incapacitated.” A properly executed power of attorney in the hands of a trusted family member or friend can ensure that your legal, financial, business and other personal matters can be managed if you are unable to manage them yourself. A power of attorney can be as broad or limited as you like. For example, you can authorize your agent to handle your bank accounts, real estate, taxes, or family support needs, or all your affairs. Although a power of attorney generally goes into effect at the time of execution, it may indicate that it applies only to a certain event, such as your incapacitation. Powers of attorney can be a powerful aid to family members who may need to access your financial accounts, manage your property, or handle other matters in the event that you are unexpectedly unable to do so. In New York, the standard power of attorney must be executed in accordance with legal requirements. You may want to work with an attorney in preparing the document so that it can be enforced when you need it.
Health Care Power of Attorney: A health care power of attorney gives a third party (attorney-in-fact) the ability to make your medical decisions if you become incapacitated. It is different from a power of attorney because it is the only advance directive that allows another person medical decisions in her name. Your agent is required to direct your care in a way that reflects your preferences regarding treatment decisions and your moral and religious attitudes toward care. Like a Power of Attorney, the Health Care Power of Attorney is only valid while you are disabled. For example, your agent has the ability to direct your attention while you are in a coma or other unresponsive state, but cannot act if you regain the ability to make your own decisions. A health care proxy generally assumes that you have already expressed your wishes to the person you designate as your proxy. However, it may be a good idea to also remember your end-of-life wishes in a living will. Health care powers must be executed in a certain way to be binding. You may want to work with an attorney to make sure your wishes can be followed if necessary.
Living will: A living will is a document that states the type and duration of medical treatment you want to receive if you have a Terminal disease. In this sense, a living will is more limited in scope than a health care power of attorney because it only governs end-of-life decisions. A person has the constitutional right to make decisions regarding the denial or termination of life support. In New York, “clear and convincing evidence” of the patient’s intent must be shown. A living will is not a binding document, but it serves as “clear and convincing evidence” of your intention. When combined with a health care power of attorney, a living will can spell out the types of life-saving treatment you would like and the circumstances under which each must be administered. There are no legal guidelines on creating a living will. However, problems can arise if the terms of your health care proxy conflict with the terms of your living will. To avoid these problems, you may want to work with an attorney to create both documents.
When properly drafted, powers of attorney, health care powers, and living wills can prevent a multitude of problems associated with illness and end-of-life. Medical emergencies are emotional enough. Help your family avoid arguments, uncertainties, and costly court proceedings by executing these important documents today.