General Information

A health care power of attorney is a document in which a competent adult (a principal), prior to becoming unconscious or incompetent:

  Declares his or her intention that certain procedures (sometimes referred to as life-sustaining procedures) should be withheld or withdrawn under specified circumstances (in a manner similar to a living will). A separate living will may be used.

  Designates a person (an agent) who will have authority to make health care decisions on behalf of the declarant, if the declarant is unconscious, incompetent or otherwise unable to make such decisions.

Granting Authority to an Agent

You (as the principal) can grant extensive authority to your agent to act on your behalf. This authority may include the authority to make any type of health care decision. In contrast, a living will only addresses life-sustaining procedures. The following example illustrate the broad powers that you can include in a health care power of attorney. A health care power of attorney allows you to state:

  Whether life-sustaining procedures should be withdrawn or withheld so that you can die naturally if you have a terminal condition or are in a permanent coma.

  Whether artificial/nutrition/hydration should be provided to you if you have a terminal condition or are in a permanent coma.

  What other provisions will limit or expand the living will such as, provisions regarding access to medical records, authority to perform an autopsy, anatomical gifts, or even the location of your health care, such as residency in a nursing home.

Although a health care power of attorney document has been executed, you (as the principal) retain the right to give current medical directions to physicians and other providers of health care services as long as you are able to do so. This document only becomes effective when you do not have the capacity to give, withdraw or withhold informed consent regarding your health care. The documentation of your wishes and desires in this type of document is encouraged because it provides guidance to your health care providers and your agent regarding your wishes. Many states provide sample health care power of attorney forms as part of their statues that authorize such documents.

Durable Power of Attorney

The health care power of attorney is a "durable" power of attorney because the document is effective during any period of time that the declarant is not competent.

In some cases, the language of a Living Will and Durable Health Care Power of Attorney may be combined in one document. This is sometimes referred to as an Advance Directive.

Do you need one?

Everyone needs a Will. If you die without a will, state law will determine who iinherits your property, and it is very unlikely that your property will pass to the persons and in the proportions you prefer. If you have no will, state laws probate judge will determine who will administer your estate, handle financial matter, and act as guardian for your children. With a will you can choose.

Is your Will Valid?

The law is very exacting in its requirements with respect to the publication, signing and witnessing of wills. It is recommended that the preparation and execution of a will be handled by a competent attorney. Homemade or "do-it-yourself" wills often do not stand up in court. If your will was prepared prior to August 1981, it may require a rewriting as a result of recent changes in the federal estate tax laws. Your attorney should review your will to ensure that it takes maximum advantage of the changes in the law.

What does the Survivor do with your will?

Upon your death, your will must be probated and your estate administered. It must be formally offered in court. The executor or executrix must be approved by the court. An estate inventory must be prepared and filed, debts and taxes must be recognized and paid, and finally, the executor or executrix must file his or her account and request that estate assets be assigned to your designated beneficiaries.

What about Lawyer's Fees?

Lawyers fees for drafting wills are generally modest. Fees are not standard, however, and you will benefit by calling attorneys listed in your area and asking their price for drawing up a will. When you realize how much is at stake, the well being of your entire family and the protection of your property, you will find that the attorney's fees for drafting your will and planning your estate is modest.