Healthcare Power of Attorney and Living Will - Basics
In my view, the healthcare power of attorney and living will are the most important documents in an estate plan. These documents govern who will care for you when you are at your most vulnerable and allow you to communicate your treatment preferences at end of life. In every family it helps to know who has authority to make these difficult decisions in advance.
There are a lot of finer nuances to these documents which will be addressed in other posts, but here is a solid overview to get you started.
What is a Healthcare Power of Attorney, what does it do, and When Does it Come into Effect?
A healthcare power of attorney - HPOA for short here - authorizes a person you designate to make healthcare decisions for you when you are unable to give informed consent to medical treatment. You, the principal, are essentially giving the person you designate, your agent, power to make decisions about your medical care when you can no longer do so yourself. That could be because you are in a coma, or it could mean you’re suffering any kind of medical condition that makes you unable to understand and select among treatment options.
Who can I choose to be my HPOA?
There are a handful of restrictions as to whom you may choose to be your HPOA. Here is a handful of people who cannot be your agent under a HPOA:
your attending physician or any of the physician’s employees;
the administrator of your nursing home or any of the administrator’s employees;
your ex-spouse if you are divorced or separated; and
your current spouse if you are in the process of divorcing or separating.
What is a Living will, what does it do, and when does it come into effect?
The living will is a separate document from the HPOA. It goes by several different names - advance health care directive, advance directive, or declaration - but they are all generally referring to the same thing. A living will is a legal document where you state your wishes should you need life-sustaining treatment (think IV fluids and feeding tube) in two particular situations:
when you are terminally ill or
when you are in a permanent state of unconsciousness.
The living will comes into effect when you can no longer make informed decisions about life-sustaining treatment.
Bear in mind that “terminally ill” and “permanent state of unconsciousness” are terms defined by Ohio law. So it may not mean what you think it does. For example, to be considered terminally ill the statute requires that there be no chance of recovery (which seems obvious, right?) and that “death is likely to occur within a relatively short time”. So if a patient has a form of terminal cancer that is perhaps less aggressive, would they still be considered terminally ill? Some states add the requirement that in order to be considered terminally ill the patient must be beyond the point where treatment will help.
And it gets even murkier with the permanent state of unconsciousness. Permanent unconsciousness may not mean the same thing as “permanent vegetative state” or “total brain death”, state laws vary on this point and it is sometimes unclear how one qualifies.
How do I obtain a HPOA and living will? What are the requirements?
Both of these are legal documents and as such carry certain requirements in order to be legally effective. In Ohio a HPOA and living will can either be witnessed by two witnesses or they can be executed in the presence of a notary public. These people cannot be the witnesses:
the person being designated by the HPOA (the agent);
your relatives (anyone related by blood, marriage, or adoption);
your attending physician; or
your nursing home administrator.
Remember though that state laws vary on execution requirements, so if you spend any significant amount of time in other jurisdictions, it might be wise to have the witnesses and the notary public even though both are not required.
What happens if I don’t have either a HPOA or a living will?
If you are in a permanently unconscious state and you don’t have a living will or HPOA, the state will appoint a healthcare agent for you. Note that such an agent cannot consent to the withdrawal or withholding of life sustaining treatment unless you’ve been in that unconscious state for at least 12 months. It also requires a court order.
Ohio is one of quite a few states that allows for family consent to the withdrawal of life sustaining treatment when you are in either a terminal condition or permanently unconscious state. But it comes with a laundry list of requirements and it still requires 12 months in a permanently unconscious state to withdraw life support.
Aside from the time and effort involved, the family consent option also puts a very difficult and painful choice on loved ones.
but what is the difference between the hpoa and the living will, aren’t they kind of the same thing?
What makes all this confusing is that the HPOA overlaps a bit with the living will. You can direct what end of life care you choose in your HPOA, and empower your agent to make those decisions for you. It almost seems as if the HPOA makes the living will unnecessary.
The HPOA is broader. It allows your agent to make any kind of medical decision for you anytime you are unable to give informed consent. The living will addresses only what life-sustaining treatment you want in two specific conditions: terminal illness or permanent unconscious state. But what makes the living will so important is that is THE final word on what you want when you are in those two specific conditions; if the HPOA conflicts, the living will wins. Not only that, but a living will has no need to appoint an agent to carry out your wishes in those two scenarios because it is self-executing.
This is why it is so important to execute both documents together. This assures first of all that they will be consistent, thus reducing the chances of there being a dispute among surviving family members. It also assures you have the broadest protection possible against receiving unwanted treatment.
I have an old hpoa and/or living will. are they still good?
Unfortunately, there isn’t a clear answer here. It depends. Some states have what are called automatic sunset provisions which basically means if you’re still alive and kicking 7 years (or whatever number of years is specified in a state statute) and you’re still capable of making your own decisions, the HPOA automatically lapses. Ohio does not have such a sunset provision. But the important thing to remember is that whatever your old HPOA and living will say is what may govern your treatment, even if you made contrary expressions more recently. As your health conditions and family situations change, you should keep both documents up to date.
Is the living will the same thing as a dnr (do not resuscitate order)?
No. A DNR is an order issued by your treating physician that directs that no life-saving treatment be administered.
Is a living will the same thing as physician assisted suicide?
No, it is not.
Physician assisted suicide is permitted by law in only a handful of states; Ohio is not one of them.
In states that allow this, patients that meet the criteria set forth in that state’s statute may ask a physician for medication that will allow the patient to end their own life. A living will is distinct because it only communicates what life-sustaining treatment you want - or don’t want - when you are terminally ill or in a permanently unconscious state.