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Living Wills and Health Care Power of Attorney – An Overview

If you’re like most people, you aren’t eager to spend time thinking about what would happen if you became unable to direct your own medical care because of illness, an accident, or advanced age. However, if you don’t do at least a little bit of planning — writing down your wishes about the kinds of treatment you do or don’t want to receive and naming someone you trust to oversee your care — these important matters could wind up in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer.

Types of Health Care Documents 

There are two basic documents that allow you to set out your wishes for medical care: a living will and a durable power of attorney for health care. It’s wise to prepare both. In some states, the living will and the power of attorney are combined into a single form — often called an advance directive. (In fact, both of these documents are types of health care directives — that is, documents that let you specify your wishes for health care in the event that you become unable to speak for yourself.)

Living Wills

First, you need a written statement that details the type of care you want (or don’t want) if you become incapacitated. This document is most often called a living will. A living will bears no relation to the conventional will or living trust used to leave property at death; it’s strictly a place to spell out your health care preferences.

You can use your living will to say as much or as little as you wish about the kind of health care you want to receive. (For more details, see Nolo’s article What Do My Living Will and Power of Attorney for Health Care Cover?)

Powers of Attorney for Health Care

You’ll also want what’s usually called a durable power of attorney for health care. In this document, you appoint someone you trust to be your health care agent (sometimes called an attorney-in-fact for health care, health care proxy, or surrogate) to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive.

(If you need help picking the right person for this job, see the article Nolo’s article Choosing Your Health Care Agent.)

Who Can Make Health Care Documents

You must legally be an adult (18 years old in most states) to make a valid document directing your health care. You must also be of sound mind — that is, able to understand what the document means, what it contains, and how it works.

When Your Health Care Documents Take Effect

Your health care documents take effect if your doctor determines that you lack the ability — often called the “capacity” — to make your own health care decisions. Lacking capacity usually means that you can’t understand the nature and consequences of the health care choices that are available to you, and you are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Practically speaking, this means that if you are so ill or injured that you cannot express your health care wishes in any way, your documents will spring immediately into effect. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care agent or close relatives) will decide whether it is time for your health care documents to become operative.

In some states, it is possible to give your health care agent the authority to manage your medical care immediately. If your state allows this option, you may prefer to make an immediately effective document so that your agent can step in to act for you at any time, without the need to involve a doctor in the question of whether or not your health care document should take effect.

Making your document effective immediately will not give your agent the authority to override what you want in terms of treatment; you will always be able to dictate your own medical care if you have the ability to do so. And even when you are no longer capable of making your own decisions, your health care agent must always act in your best interests and diligently try to follow any health care wishes you’ve expressed in your health care declaration or otherwise.


If you need legal assistance in managing an estate, trust or other elder law issue, the Law Office of Scott C. Painter can help. We specialize in elder law issues ranging from nursing home planning, guardianship, wills, trusts, estates, veteran’s benefits, and other related legal matters. A call to us is free, and the best advice is to act now to educate yourself and your options. Waiting to seek legal counsel may limit your options and be costly. Call now for your free consultation 610-378-5140 or visit for more information.