Should I get an Advance Directive, a Living Will or a Health Care Power of Attorney?

The answer is the first one or the second one and the third one. The problem with answering the question is first and foremost one of terminology. For starters, each state calls these legal documents by different names. For instance, Maryland has an Advance Directive, Virginia has an Advance Medical Directive and the District of Columbia has a Power of Attorney for Health Care and Declaration of Living Will. In addition, as a legal community we have simply not standardized our terms. What one lawyer calls a Health Care Power of Attorney, another calls an Advance Directive. In this blog I will attempt to clear up the confusion. (At least for Maryland residents).

Before talking about each of these different documents, we need to understand what we are trying to do with them. In general, the purpose is to give someone the legal power to make medical decisions for you when you cannot. For instance, if you have just been in a serious accident and are unconscious we need someone to give the “okay” to the doctor to perform surgery. In addition to giving someone this authority, it would also be nice if these documents provide some guidance to the person as to how to make the decisions.

Health Care Power of Attorney

Recall that you can execute a Durable Power of Attorney to give legal power to someone to handle your economic affairs. (See What is a Durable Power of Attorney Anyway?). Thus, some refer to a document that gives power over medical decisions a Health Care Power of Attorney. This document appoints an agent to make medical decisions. This person will be able to receive medical information and make decisions about treatment options for you. In other words, the doctors can tell your agent what your condition is and ask your agent for permission to provide treatment.

Living Will

The Living Will indicates your personal preferences as to what type of medical treatment you want in an end-of-life situation. Do you want to be on a ventilator? Do you want pain medication even if it would shorten your remaining life? This document does not provide any information as to who can make these decisions. In my opinion, the Living Will is of seminal importance because it eases the burden on your loved ones who have to make these tough decisions. Additionally, a Living Will should eliminate disputes over what treatment should (or should not) be provided. Everyone wants to avoid the legal battle that surrounded the Terry Schiavo case.

Advance Directive

In Maryland, an Advance Directive is simply a document that contains both a Health Care Power of Attorney and a Living Will. The first part of the Advance Directive names the person (or agent) to make health care decisions for you. Treatment preferences in end-of-life situations are contained in the second part. Thus, at least in Maryland, a properly drafted Advance Directive should accomplish all of your needs.