Living Will and Health Care Power of Attorney
When we think of estate planning we typically think of all that’s involved in distributing our assets upon our death. We seldom think that one of the best gifts we can leave our family and care givers is a legal document that communicates how we’d like to be cared for if we are incapacitated and/or terminally ill. Completing your Living Will and Health Care Power of Attorney reduces confusion and conflict about the health care choices you want your family to make on your behalf. Since your family members will be called upon to make these decisions during times of crisis, the potential for conflict is high if you have not provided guidance.
Many clients ask what the difference is between a Living Will and a Health Care Power of Attorney. To best prepare you for your initial meeting with an Estate Planning attorney and to help you start discussions with family members below are some of the similarities and differences between these two important documents.
Individuals who are over eighteen years old and of sound mind can execute both a Living Will and a Health Care Power of Attorney.
A Living Will applies in a specific situation: when the medical care you are receiving only delays your death when you have a terminable condition and your condition is irreversible. You must be unable to communicate your end of life wishes and your health care agent is not available to communicate your desires. It provides direction to your doctor on issues like feeding and hydration and can also address whether you want to be on a ventilator if you are unable to breathe independently.
A Health Care Power of Attorney allows you to appoint an agent (and successor agent if initial agent unable to act) to make health care decisions for you. In Illinois, you can decide whether you’d like the agent to act immediately or only once you become incapacitated, as determined by your doctor. You can delineate how broad the agent’s powers are. Unless limited, the agent has authority to discharge medical providers, to act as your medical advocate, to take action to maintain you in your residence, to make decisions regarding organ donation, nursing home care or burial arrangements.
In Illinois, there are specific requirements regarding the witness and notary requirements for both documents and some actions that can be taken to increase the likelihood the documents will be accepted outside of Illinois.