Health Care Power of Attorney vs. Living Will
A living will (LW) is often confused with a health care power of attorney (HCPOA). Both documents are applicable to health care decisions made on behalf of the principal (creator of the document). However, both documents serve different functions and should be considered with care.
Health Care Power of Attorney
A health care power of attorney is effective only when the principal cannot make health care decisions for himself or herself. A health care power of attorney may become effective and remain effective only for a short duration. People who are intoxicated, in a comatose state, delirious, severely depressed, or possess another form of impairment may be deemed to lack the capacity to make health care decisions on his or her behalf.
No Health Care Power of Attorney If a person is unable to make health care decisions and does not have a health care power of attorney, Ohio directs that the consent of a patient’s natural or court-appointed guardian be obtained. If there is no guardian, the decision regarding medical treatment is determined by next of kin. The order of priority is the spouse, majority of adult children, parents, majority of adult siblings, or other nearest relative.
Living Will
A living will should not be confused with a last will and testament; these are two completely different documents. The purpose of a living will is to document your wish that life-sustaining treatment, including artificially or technologically supplied nutrition and hydration, be withheld or withdrawn if you are unable to make informed medical decisions AND are in a terminal condition or in a permanently unconscious state. Unlike the health care power of attorney, the living will requires a second prong to be met in order to become effective – terminal condition or permanent unconsciousness – but what does that mean?
- Permanently Unconscious State means an irreversible condition in which the patient is permanently unaware of himself or herself and surroundings. At least two physicians must examine the patient and agree that the patient has totally lost higher brain function and is unable to suffer or feel pain.
- Terminal Condition means an irreversible, incurable and untreatable condition caused by disease, illness or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a declarant’s attending physician and one other physician who has examined the declarant, both of the following apply: (1) there can be no recovery and (2) death is likely to occur within a relatively short time if life-sustaining treatment is not administered.
If all of the above conditions have been met, this document directs the principal’s physician to let him or her die naturally, providing the principal only with comfort care. The living will is more narrow in scope than a health care power of attorney. When both a living will and a health care power of attorney are both duly executed, a living will takes precedence over the health care power of attorney.
No Living Will and No Healthcare Power of Attorney If a person is unable to make healthcare decisions and s/he is terminally ill or permanently unconscious, the attending physician must seek an order from the county probate court in order to determine whether to withdraw food or liquids. The court will order withdrawal of food or liquids only if one of the following is clearly shown: (a) you had previously stated that is what you want; or (b) this is the decision you would have made, based on your lifestyle and character. If an individual is in the final stages of a terminal illness, next of kin may consent to the withdrawal of artificially supplied food or hydration without a court order.
Obligatory Disclaimer: Nothing contained in this post constitutes legal advice. Nothing herein should be construed as or relied upon as legal advice. Everyone’s situation is different. Consult an experienced attorney, financial advisor, or tax expert before making any decisions.
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