Living Will Vs. Power of Attorney: What’s the Difference?
A living will and power of attorney are both legal documents that can be used as part of an overall estate planning package. Both documents allow individuals and families to prepare for the unexpected. While the documents are similar, they often accomplish different goals. In some situations, having both documents can be a good idea, but it might not be necessary in other circumstances. Loughlin Law, P.A. can help you compare a living will vs. power of attorney and choose the estate planning options that are right for you. Contact our team today by calling (561) 677-8384.
What Is a Living Will?
A living will is not like a traditional Last Will and Testament. The document is also sometimes referred to as a health care directive or advance directive. Instead of addressing what will happen to your property after you pass away, a living will provides loved ones with direction in the event that you cannot give opinions and express desires about medical care. A living will can address whether someone would like a variety of medical treatments or care if they become incapacitated. For instance, it might address any of the following:
- Experimental or dangerous treatments
- Feeding tube
- Assisted breathing
- Resuscitation
- Certain end-of-life care wishes
- Organ donation
- Pain management
Some living wills provide extensive information about care so that medical treatment aligns with their religious or philosophical beliefs. For instance, they might include a blanket statement that they do not wish to have any life-sustaining treatment or procedures, regardless of what form that may take.
What Is a Power of Attorney?
A power of attorney is a legally binding document that designates someone else to make certain decisions on behalf of someone else. Powers of attorney can be extremely broad or very limited. For instance, someone can provide a power of attorney to sign one specific document, or they may grant them the power to deal with all of their finances. Below are a few types of power of attorney recognized in the state of Florida.
- Durable Power of Attorney: A durable power of attorney is in effect not only immediately when someone signs it, but also if the principal (the person who signed the document) becomes incapacitated. Normally, if a power of attorney is not “durable,” then it will not be effective if someone is incapacitated. A durable power of attorney will not be affected by the principal’s incapacitation. However, a durable power of attorney will still end at the principal’s death.
- Financial Power of Attorney: A financial power of attorney names someone else (an agent) to control various financial aspects of the principal’s life. The scope of financial powers of attorney are typically set out in the document. The agent may have access to and control over all of the principal’s financial concerns, or they may control only a certain type of financial asset, such as real estate or investments. A financial power of attorney may be limited in time, as well.
- General Power of Attorney: A general power of attorney is the broadest type of power of attorney. The principal gives the agent power to act on their behalf across a wide range of daily activities, information access, and decision-making operations. Like a financial power of attorney, however, a general power of attorney can be drafted to limit the agent to certain categories of decisions. This type of limitation can turn the document into a limited power of attorney.
- Medical Power of Attorney: A medical power of attorney names someone else to make medical decisions for the principal. This document is the one most similar to a living will.
The Florida Bar Association provides some helpful information about key terms in various types of power of attorney documents. Contact Loughlin Law, P.A. for specific information about how a power of attorney document may be helpful in your unique situation.
Differences Between a Living Will and a Power of Attorney
A living will and medical power of attorney can both empower an agent to make medical decisions on behalf of the principal. However, there are a couple of important differences.
- Living Will: Sets out specific directions to medical care providers regarding certain types and methods of medical treatment; is provided directly to healthcare professionals to follow in the event that the person who drafted the living will cannot communicate effectively
- Medical Power of Attorney: Designates someone else to make medical decisions, with no specific direction to health care professionals
The person named as an agent in a medical power of attorney may have specific direction from the person who named them about their wishes for medical care. However, medical professionals do not receive any other direction about care other than to ask the person named in the power of attorney documents. A living will, in comparison, only “springs” into effect if an individual cannot communicate their wishes regarding medical treatment. If someone can still communicate, then there is no need to use this type of legal document, but the document itself will constitute the principal’s communication with medical professionals.
Is there a difference between a power of attorney and a durable power of attorney?
Yes, there is a difference between a power of attorney (POA) and a durable power of attorney (DPOA). The primary distinction lies in how each document remains effective in the event of the principal’s incapacitation.
Power of Attorney (POA)
1. Purpose:
• Grants authority to an agent (also known as an attorney-in-fact) to act on behalf of the principal (the person who creates the POA).
• Can cover various areas such as financial, legal, and sometimes health care decisions.
2. Effectiveness:
• The authority granted by a standard POA ends if the principal becomes incapacitated or mentally incompetent.
• Typically used for specific tasks or a set period.
3. Types:
• General POA: Gives broad powers to the agent to handle a wide range of activities on behalf of the principal.
• Limited or Special POA: Grants authority to the agent for specific tasks or transactions.
Durable Power of Attorney (DPOA)
1. Purpose:
• Similar to a standard POA in that it grants authority to an agent to act on behalf of the principal in financial, legal, and sometimes health care matters.
2. Effectiveness:
• The key feature of a DPOA is that it remains effective even if the principal becomes incapacitated or mentally incompetent.
• Ensures that the agent can continue to manage the principal’s affairs without interruption due to the principal’s incapacity.
3. Durability Clause:
• Includes specific language stating that the power of attorney will remain in effect despite the principal’s incapacitation. This is what makes it “durable.”
Power of Attorney vs Durable Power of Attorney
•Power of Attorney (POA): Grants authority to an agent to act on behalf of the principal but becomes invalid if the principal becomes incapacitated or mentally incompetent.
•Durable Power of Attorney (DPOA): Grants similar authority to an agent but includes a durability clause that keeps the POA effective even if the principal becomes incapacitated or mentally incompetent.
Combining a Living Will and Power of Attorney
The State of Florida allows individuals to combine a living will and power of attorney into one document called a “combined advance directive for health care.” This feature allows individuals to avoid having to choose a living will vs. power of attorney.
A combined advanced directive for health care can set out specific wishes regarding medical care and name someone else to make health care decisions if the specific treatment is not on a list of prohibited treatments. The hybrid document ensures that specific medical care wishes are documented but also adds a layer of flexibility so someone else can make other medical decisions that are not explicitly addressed.
Living Will Vs. Power of Attorney: Which Is Right for You?
Living wills and powers of attorney have different drawbacks and benefits. In some cases, having one or the other makes sense, but individuals can sometimes combine them as well. Learn more about choosing a living will vs. power of attorney from an experienced and compassionate estate planning lawyer at Loughlin Law, P.A. Contact our team today by calling (561) 677-8384.
