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Many people are confused by these two important estate planning documents. It’s important to understand the functions of each and ensure that you are fully protected by incorporating both of these documents into your overall estate plan.
LIVING WILL
A “living will,” often called an advance health care directive, is a legal document setting forth your wishes for end-of-life medical care in the event that you are unable to communicate those wishes yourself. In Louisiana, the advance directive is only operative if you are diagnosed with a terminal condition and the administration of life-sustaining treatment will merely artificially prolong the process of dying, or if you are in a persistent vegetative state with no hope of recovery. In the document, you will also have to elect if you wish the life-sustaining procedures to be withheld to include nutrition or hydration or not.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
A durable power of attorney for health care is a document in which you name another person to serve as your health care agent. This person is authorized to speak on your behalf in order to consent to – or refuse – medical treatment if your doctor determines that you are unable to make those decisions for yourself. With the ever increasing reliance on Hippa laws by the medical community, this document has become invaluable for the person seeking information for a loved one. A durable power of attorney for health care can be operative at any time you designate, not just when your condition is terminal. The term "durable" means that the document survives any incapacity you may suffer that would render you incapable of making those decisions. That is why it is an important document to execute now, while you still have the requisite capacity to execute such a document.
BOTH DOCUMENTS SHOULD BE IN YOUR ESTATE PLAN
For maximum protection, we strongly recommend to all of our clients that they have both a living will and a durable power of attorney for health care. The power of attorney affords you flexibility with an agent who can express your wishes and respond accordingly to any changes in your medical condition. Your agent should base his or her decisions on any written wishes you have provided, like an advance directive. This is how the two documents work in accord with eacjh other, assisting your agent in deciding what you would ewant done if you were in a position to speak for yourself. Furthermore, the advance directive is necessary to guide health care providers in the event your agent is unavailable. If your agent’s decisions are ever challenged, the advance directive can also serve as evidence that your agent is acting in good faith and in accordance with your wishes.
ADDITIONAL INFORMATION
Although beyond the scope of this article, we would be remiss if we didn't at least mention that as it relates to the health care power of attorney, it is often incorporated into a durable general power of attorney, which gives an agent the authority to act on your behalf in all of your financial affairs as well as your health care decisions. However, sometimes these documents are separated into two distinct legal documents for many reasons, one of which is because the client will appoint one agent to make financial decisions and another individual to be the agent for healthcare decisions. These are choices solely up to the client.
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