Living Will Versus Medical Power of Attorney

Two papers come up again and again when people plan ahead for medical care. One is a living will. The other is a medical power of attorney. The names sound alike, and people often mix them up. But the two papers do two different jobs.

A living will states what care you do or do not want. A medical power of attorney names a person who can decide for you. Both are types of advance directives. An advance directive is a legal paper that states your wishes for medical care ahead of time. It only goes into effect if you cannot speak for yourself or share your own wishes.

This guide explains how the two papers differ, what each one can and cannot do, and why many people choose to have both. For the wider picture, see our guide to advance directives and how to get started.

Key takeaways

• A living will states your wishes about treatment. It does not name a person to decide for you.
• A medical power of attorney names a trusted person to make health care choices for you if you cannot make them.
• The two papers work well together. One states your wishes. One names your voice.
• Names and signing rules differ by state, so use the form made for your state.
• You can set up both papers for little or no cost, and you do not need a lawyer to do it.

The Short Answer

Think of it this way. A living will is about your wishes. A medical power of attorney is about a person.

A living will tells doctors how you want to be treated if you cannot make your own choices about urgent or end of life care. In it, you can say which treatments you would want, which ones you would not want, and when each choice should apply.

A medical power of attorney names your health care proxy. A proxy is a person who can make health care choices for you if you cannot share them yourself. You may also hear this person called an agent, a surrogate, or a representative. The paper that names this person is also called a durable power of attorney for health care in many states.

What a Living Will Does

A living will speaks in your own words about treatment. Medicare notes that it can state which treatments you want if your life is at risk. That can include dialysis, breathing machines, resuscitation, and tube feeding. It can also state if you want to donate your organs or tissues after you die.

MedlinePlus lists more items people often cover, such as CPR, feeding through a tube, tests, medicines, surgery, and blood transfusions.

A living will has clear limits, though. It does not deal with money or property. It is not the same as a last will, which is about what happens after a person dies. And you cannot use a living will to name a person to decide for you. That job belongs to the other paper.

What a Medical Power of Attorney Does

A medical power of attorney names a person, not a set of treatment rules. That person steps in only if you cannot make or share your own choices. While you can still decide for yourself, you stay in charge of your own care.

The person you name can talk with your doctors and make choices about tests, procedures, and treatments. That is why the choice of person matters so much. Pick someone who knows your values well and can speak up for you, even if others in the family do not agree. Our guide to choosing a health care agent and discussing your wishes can help you think through that choice.

This paper covers health care choices only. It does not give your agent the power to make legal or money choices for you. A medical power of attorney is a health care paper, not a bank or property paper.

You can name your agent in addition to a living will, or instead of one. The agent can also help in cases no one saw coming, such as a bad car crash or a stroke, where a living will may not cover the exact choice at hand.

A Side-by-Side Look

• Question: What does it do?; Living will: States the treatment you do or do not want; Medical power of attorney: Names a person to make health care choices for you
• Question: Who speaks?; Living will: The paper speaks, in your own stated wishes; Medical power of attorney: A person you trust speaks for you
• Question: What does it cover?; Living will: Treatments such as breathing machines, resuscitation, and tube feeding; Medical power of attorney: Choices about tests, procedures, and treatments as they come up
• Question: Can it name a decision maker?; Living will: No; Medical power of attorney: Yes, that is its main job
• Question: Does it cover money or property?; Living will: No; Medical power of attorney: No, it covers health care only

Why Many People Have Both

Each paper fills a gap the other one leaves. A living will states your wishes in clear words, but it cannot answer a new question no one thought of ahead of time. An agent can answer new questions, but the agent decides best when your wishes are also written down.

With both papers in place, your care team can read what you said you want, and they can ask the person you trust when a choice is not covered in writing. That mix gives your family less to guess about at a hard time.

There is one more thing to know. An advance directive is legally recognized, but it is not legally binding in a strict sense. Your doctors and your agent will do their best to follow your wishes. In a complex case, though, it may not be clear what you would have wanted. That is one more reason to talk with your loved ones ahead of time, not just fill out forms.

What Happens If You Have Neither Paper

If you have no advance directive and you cannot make your own choices, state law decides who may decide for you. In most cases, that is your spouse, your parents if they can serve, or your adult children.

That rule can leave out people who matter to you. If you are not married and you have not named your partner as your proxy, your partner could be left out of the choices. If you have no family, some states let a close friend who knows your values help. Others may assign a doctor to act in your best interest. A simple paper, signed while you are well, can prevent that stress later.

How the Names and Rules Change by State

Do not be surprised if your state uses different names. New Jersey, for example, calls the living will an instructive directive and the medical power of attorney a proxy directive. Other states use other names for the same two ideas. What matters is the job each paper does.

Signing rules change by state, too. In New Jersey, you can sign your form in front of two adult witnesses, or you can have it notarized instead. The person you name as your agent cannot serve as a witness. Other states set their own rules about witnesses and notaries. So always use your own state's form, and follow the signing steps that come with it.

You do not need a lawyer to complete an advance directive. A lawyer can help if you want one, and you should give your lawyer a copy when you are done.

A DNR order is different from both of these papers. It is a medical order that tells staff not to try CPR if your heart or breathing stops. Our guide to DNR orders and how they differ from advance directives explains that split in plain terms.

Who covers what

• Medicare: Medicare covers voluntary advance care planning as part of the "Welcome to Medicare" visit and your yearly "Wellness" visits. Medicare may also cover it as part of your medical treatment. That cover is for the talk with your care team. It is not pay for drafting the legal papers on your own.
• Medicaid: Medicaid gives health coverage to people who qualify, such as eligible low-income adults, older adults, and people with disabilities. States run it under federal rules. Medicaid does not pay to draft a living will or a medical power of attorney. Those are legal papers, not health care.
• Private pay: the papers themselves cost little or nothing for most people. Many states give their forms for free, and you do not need a lawyer to fill one out. If you choose to hire a lawyer to draft or check your papers, you pay that cost yourself.

Sample Situation

Frank is 72 and in good health. This is just an example, but it shows how the two papers work as a pair. Frank's living will says he does not want long term care on a breathing machine if he cannot recover. His medical power of attorney names his daughter, Lisa, as his agent.

Last spring, Frank had a stroke and could not speak. His doctors read his living will and knew his wishes about the breathing machine. When a new choice came up about a procedure the living will did not mention, the doctors turned to Lisa. She knew her dad's values from their talks, and she made the call he would have made. Together, the two papers covered both needs.

Where to Get Free Forms and Help

You can set up your advance directives for little or no cost. Many states have their own forms, and you can get them for free. Here are good places to start:

When your forms are signed, make copies. Give a copy to your agent, your doctors, and your loved ones. Keep your own copy in a safe place that people can find. Some states have registries that can store your directive for fast access.

Look at your papers at least once a year. Update them after big life changes, such as retirement, a move to a new state, or a big change in your health. When you update a form, share the new copy with everyone who holds the old one.

• Your state health department. Medicare points people there for help with advance directives.
• Your State Attorney General's Office, a source the National Institute on Aging lists for state forms.
• Your local Area Agency on Aging. Find it through the Eldercare Locator, or by calling 800-677-1116.
• Your doctor or hospital. Your care team can talk through the forms with you.
• A talk at your Medicare visit. Medicare covers advance care planning talks as part of your "Welcome to Medicare" visit and your yearly "Wellness" visit.

A Next Step: Learn What Hospice Care Does

These papers are about making your wishes known while you can still state them. Part of that planning is knowing what kinds of care exist near the end of life. To learn how one option works, read about hospice care and the support it gives patients and families at home.

You do not have to do all of this in one day. Start with one talk. Then get your state's forms.

Sources

• https://www.nia.nih.gov/health/advance-care-planning/advance-care-planning-advance-directives-health-care
• https://www.medicare.gov/coverage/advance-care-planning
• https://www.medicaid.gov/medicaid/index.html
• https://www.nia.nih.gov/health/advance-care-planning/advance-care-planning-and-health-care-decisions-tips-caregivers-and
• https://medlineplus.gov/ency/patientinstructions/000472.htm
• https://www.nj.gov/health/advancedirective/ad/forums-faqs/index.shtml