Why do You Need Both a Health Care Power of Attorney and a Living Will

By Lane V. Erickson, Idaho Estate Planning Attorney

Our goal as the premier Idaho estate planning firm is to assist each of our clients in completing a plan that both protects them while they are alive and gives them the ability to transfer their money, property, and assets, to their family and loved ones after they die. When I am working with estate planning clients I often tell them that their plan can provide specific protections for them while they are alive. In fact, I tell them that the most important thing their estate planning can do is protect them while they are alive and make sure that their plans and wishes are actually carried out both while they are alive and after they pass away.

The team of estate planning lawyers at the Racine law office work together to ensure that each of our client’s needs are met through their customized estate planning documents. Our team of premier Idaho estate planning attorneys consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of the attorneys on our team have the knowledge and skill necessary to help our clients with even the most intricate estate plans. Again, our goal is to customize an estate plan to meet the specific needs and circumstances of each of our clients.

One of the questions that often comes up with clients is what is the difference between a living will and health care power-of-attorney. Usually this question comes up because some of our clients want to know why they need both of these documents. The purpose of this article is to explain the differences between the health care power-of-attorney and the living will and to explain why both of these documents are important part of your estate plan.

The first thing this article will do is discuss what the health care power-of-attorney is and how it's helpful to you individually. When it comes to estate planning there are different kinds of Powers of Attorney that a person can get. The most common one that people know about is the durable power of attorney. This power of attorney gives an individual the ability to name someone else who will take care of their money, property, assets, and so forth. Essentially, this power of attorney gives another person the ability to step into your shoes and do everything for you that you normally do for yourself in taking care of your finances and property. Because of this, I often refer to this power of attorney as the global power. The only limitation to the durable power of attorney is that it does not include a grant of authority to make decisions about health care. Because of this, Idaho law requires a separate power of attorney to be executed for healthcare.

The health care power-of-attorney is very narrow in scope and power. It's sole purpose is to give the power of making healthcare decisions to another individual. However, even this power is limited as well. The health care power-of-attorney is only effective so long as the person is not on life support or at the end of their life.

The power that is conveyed is limited to only to medical and health care decisions. These types of decisions would include the medicines that you would take, the doctors that you would visit, and the medical procedures that you might receive. This power also gives you the ability to access the individual’s medical records without violating any HIPAA requirements or restrictions. This gives you the full ability to make any medical related decisions associated with this individual with the exception of any end-of-life decisions.

When it comes to end-of-life decisions these are all controlled by the living will portion of your Idaho estate planning documents. In order for the living will to actually take effect, and your health care power of attorney to come to an end, certain circumstances have to be in place. These include that you have had an injury or an illness that has put you in the hospital and placed you on life support. The doctors have diagnosed your condition and have indicated that you will not recover and that if they turn the life-support machines off you will likely pass away immediately. The most important criteria of all however is that you are unable to communicate with your health care providers. This could be either because you are unconscious or because you lack the capacity to understand. When all of these circumstances exist, this is when your living will becomes effective and your health care power-of-attorney ends.

The reason your health care power-of-attorney ends under these circumstances is because the law allows you to make decisions about your own end of life health care. In fact, the purpose of a living will is to remove these end of life decisions off of the shoulders of your family and other loved ones or even the person you've granted the power of attorney to for your health care. The living will gives you the ability to make your own end-of-life decisions without interference or input from any other person.

You have a number of options available to you under your living will if you are in a true end-of-life circumstance. The options that exist give you the ability to tell the doctors what you do want them to do and more importantly what you do not want them to do in treating you. You have the specific ability to tell your health care providers to withdraw and withhold any medical treatments so that you can pass away normally and naturally without your life being artificially prolonged. Alternatively, you have the ability to tell your healthcare providers that you do want them to take certain measures to keep you alive as long as possible.

The choices you have available to you in your living will are very personal. When we are assisting our clients with their living will, we take the time to go through every choice available to help them understand what they can choose to do. We strive to answer any questions our clients have. What we do not do is suggest to our clients the choice they should make. The decisions made on a living will are very personal. An individual should never feel that they are being pressured or coerced in any way to make any specific decision other than what they themselves want.

A living will, and a healthcare power of attorney are only two of several of the basic estate planning documents that every person should have. Other documents include a last will and testament, and as previously mentioned, a durable power of attorney for property and finances. It's also possible that you may need a trust or a plan related to your minor aged children or children that have disabilities or handicaps as well. The good news is that estate planning is designed to help every person regardless of their circumstances or needs.

We have assisted numerous clients in completing their own customized estate plans that include a living will, a healthcare power of attorney, and other important estate planning documents. We are confident that we can answer your questions and help you complete your customized estate plan to!

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com. We will answer your questions and help you solve your Idaho Estate Planning problems.