Should I have a living will or a health care power of attorney?

April 16th is National Health Care Decisions Day. Health care decision making involves considerations about personal preferences, the role of other family members and physicians, finances, and religious beliefs. The legal profession is uniquely positioned to provide practical advice as well as customize legal documents that protect the following:

♦ the right to consent to or refuse treatment,
♦ the right to understand information about the benefits and risks of possible medical interventions, free from coercion ♦ the right to decide regardless of family or physicians what is best for you,
♦ the right to ensure your wishes are carried out despite the loss of capacity,
♦ the right to appoint a surrogate decision maker.

Written directions avoid uncertainty, family guilt, the need and cost of court ordered guardianship, and conflict over who will make decisions.

Much of the case and statutory law changes have come about following guardianship proceedings for younger adults such as the Florida case of Terri Schiavo. This area of law will continue to develop as our nation considers whether to mandate universal health coverage, ration certain medical care (especially to the elderly and mentally ill), allow hospital ethic committees to override a patient’s wishes for end of life treatment, and the use of technology.

For over a decade living wills have been out of favor as the preferred or recommended health care proxy document. Health care powers of attorneys are more flexible, recognize that doctors don’t just intuitively know their patients’ wishes for end of life treatment and really don’t want to make those calls for patients, and generally aren’t as narrow on the “don’t treat presumption”. Health care decision making is not just about end of life situations. A document can also give directions about treatable conditions when a person is not competent, address placement and dignity issues. Our attitudes about death and illness change as we age; our health usually changes too, and your health care power of attorney should reflect your philosophy for care and recite some of your personal values, and not focus solely on not lingering before death.

Be aware that if you have an older HCPOA it may not comply with language requirements of HIPAA, the Health Care Portability and Accountability Act of 1996, for releasing medical information. While health care proxies are portable across state lines, the interpretation of the language varies greatly. For more information on health care decision making go to


Disclaimer:  Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client.  No attorney-client relationship is created by reading this column.

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