Living Wills and Medical Powers of Attorney – Why They Are Important

Medical Power of Attorney agent discussed health care decisions with family member
It is important to discuss medical preferences with your medical power of attorney agent.

Living Wills (referred to in Texas as “Directives to Physicians and Family Members”) and Medical Powers of Attorney are important if a person becomes incapacitated, whether that status is permanent or temporary. These are part of a comprehensive estate plan, and you’ll want to take care of this before a medical emergency arises. That’s the recommendation from the McPherson Sentinel article “Advance health care directives important to all adults.”

Documenting your wishes about future health care lets a cognitively healthy person express his or her wishes with a clear perspective. Unfortunately, only one in four American adults has their medical power of attorney and/or living will in place. Many wait to begin the planning process until they are in their 50s or 60s. The problem is, life doesn’t have a plan. Tragedy can strike at any time in life. A serious illness or an accident can occur leaving the family wondering what the person would have wanted.

You do not need to be in an “end of life” situation for a medical power of attorney to come into play. The agent you name in your medical power of attorney makes a health care decision for you any time you cannot communicate your wishes, yourself. This could happen during a routine medical procedure that is not life threatening.

The living will, on the other hand, sets out your wishes in the event you have a terminal condition, death is imminent, and you do no want your life to be prolonged by artificial means. Artificial means may include, among other things,  being placed on a ventilator or receiving artificial nutrition and hydration.

Under Texas law, your agent under a medical power of attorney may make the decision to withhold or withdraw life support, unless you have limited that power in the document. That is why a living will or a directive to physicians may not be legally necessary, if you have named an agent in a medical power of attorney. But many people opt to have a living will in addition to a medical power of attorney. They would like to give their own instructions for end of life decisions as opposed to putting the burden on the agent named in the medical power of attorney.

One thing to keep in mind is that a medical power of attorney is different from a financial durable power of attorney (in Texas – the Statutory Durable Power of Attorney), which gives a person the right to act as another person’s agent and conduct business and financial matters on his or her behalf.

It’s very important that the people you designate as agents in a medical power of attorney or living will are told that they have been named. You should designate an initial agent and then one or more successor agents in case the first person named is unable to act. Your agents need to fully understand what your wishes are and what kinds of treatments are acceptable to you. Communication is the key and you need to make sure that you and your agent have discussed your preferences.

The people you select as agents under your medical power of attorney should also understand that health care decisions for you need to be made according to your wishes and not their wishes or the wishes of other family members.

These documents should be prepared for you as part of your overall estate plan, with the guidance of an estate planning attorney. Be aware that the laws vary from state to state, so you’ll want to work with an attorney who knows your state’s laws. If you relocate to another state, you should update your medical power of attorney and living will to conform with that state’s laws.

Finally, make sure that your medical power of attorney and living will are located in a place where they can be easily found in an emergency.  Your agents should each have a copy they can bring to the hospital, if necessary. The important thing is that the medical power of attorney and living will can be found and used in a time of crisis.

Reference: McPherson Sentinel (April 17, 2019) “Advance health care directives important to all adults”

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