Living Wills and Health Care Powers of Attorney Explained

Put your wishes for medical care in writing now, while you can, so no one has to guess later.

Most people would rather not dwell on what happens if illness, an accident, or age eventually leaves them unable to speak for themselves. But skipping this planning has real consequences. Without a few key documents on file, decisions about your care could fall to a distant relative, a doctor who barely knows you, or even a judge — none of whom may have any idea what you'd actually want.

• The documents that spell out your health care wishes
• Who is legally allowed to create them
• When these documents actually kick in
• When they stop applying
• How to make yours hold up

The documents that spell out your health care wishes

Two core documents let you put your medical preferences on record: a living will and a durable power of attorney for health care. It's smart to have both. Some states merge them into a single form, often called an advance directive. Both fall under the broader label of "health care directives" — paperwork that lets you speak for yourself even when you no longer can out loud. To see what your own state calls these forms, check What Health Care Directives Are Called in Your State.

Two additional documents cover emergency situations: Do-Not-Resuscitate (DNR) orders and Physician Orders for Life-Sustaining Treatment (POLST) forms. People nearing the end of life or living with a terminal diagnosis typically use these.

Living wills

Start with a written statement describing the care you want — or don't want — if you can no longer make decisions yourself. This is usually called a living will, though your state might use a different label, such as a health care declaration. It has nothing to do with the will or living trust that governs your property after death; its only job is to record your medical preferences.

You get to decide how much detail to include, from broad guidelines to very specific instructions about particular treatments.

Powers of attorney for health care

You'll also want a durable power of attorney for health care. This document names someone you trust — your health care agent, sometimes called an attorney-in-fact, health care proxy, or surrogate — to make medical decisions on your behalf and make sure your care matches what you actually want.

Who is legally allowed to create them

To make a valid health care document, you generally need to be a legal adult — 18 in most states — and of sound mind, meaning you understand what the document says, what it does, and how it functions.

When these documents actually kick in

Your health care documents don't activate the moment you sign them. They wait until a doctor determines you've lost the capacity to make your own medical decisions. Losing capacity generally means:

• you can't grasp the nature and likely results of the treatment choices in front of you, and
• you can't communicate your own wishes, whether by speaking, writing, or gesturing.

In practice, if you're too ill or injured to express any preference at all, your documents take effect right away. If there's uncertainty about how much you understand or whether you can communicate clearly, your doctor — working with your agent or close family — decides when it's time to put the documents into use.

Documents that take effect right away

Some states let you make your power of attorney effective immediately, rather than waiting for a finding of incapacity. If your state offers this, you might prefer it, since it lets your agent step in whenever needed without a doctor first having to weigh in on your mental state.

Choosing immediate effectiveness doesn't hand your agent the power to overrule you. As long as you're able to make your own choices, you still call the shots. And even once you can't, your agent is bound to act in your interest and to follow the wishes you laid out in your living will as closely as possible.

When they stop applying

Your health care documents remain valid for the rest of your life unless you cancel them or a court steps in — and court involvement is uncommon. Here's when they typically stop working:

• You cancel it. You're free to change or cancel your health care documents at any point. The exact method depends on your state — sometimes destroying the physical document works, sometimes telling your provider is enough, or you can simply draft a new one. Either way, make sure your agent and your health care providers know the old document is no longer valid and isn't on file anymore.
• A court sets it aside. Judges generally agree that courtrooms are the wrong place to settle health care decisions. Still, if a dispute arises and someone challenges whether your directive is valid — for instance, questioning whether you had the mental capacity to sign it — the issue can land in front of a judge. This is rare, and the person challenging the document carries the burden of proving you lacked capacity; the law assumes you were competent unless proven otherwise.
  
  A court might also strike down a document that wasn't executed properly, say, if it lacked the required notarization or witnesses in your state. Even then, your stated wishes will likely still be honored as long as they're clear and you were of sound mind when you wrote them. In Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the U.S. Supreme Court held that strong evidence of a person's wishes should be respected — a paperwork error alone won't erase your intentions.

• A court removes your agent. If someone suspects your agent isn't following your wishes or acting in your interest once your documents are active, they can petition a court to investigate. If the court finds wrongdoing and removes your agent, authority passes to any backup agent you named. Without an available backup — or if the whole document gets invalidated — the court will appoint a guardian or conservator to decide on your care instead.
• You divorce. Divorce doesn't touch your living will itself. But if your ex-spouse was named as your health care agent, many states automatically cancel that authority once the divorce is final. Any backup agent you listed then takes over. Even so, it's worth drafting a fresh document after a divorce to avoid any confusion.
• You die. Health care documents generally become unnecessary after death. Some states, though, keep limited provisions active afterward — for example, allowing your agent to authorize an autopsy or organ donation, unless you specifically ruled that out when you made the documents.

How to make yours hold up

Take the time to make your advance directive as solid as possible. A few common pitfalls to avoid, and habits worth building:

• Spell out your wishes in detail. If you have strong preferences — say, avoiding a particular hospital or holding firm views on pain medication — write them down clearly. Even a basic fill-in-the-blank state form usually leaves room for extra notes. Don't assume your family already knows what you want. They may know less than you think, stress can cloud memory, and years can pass before your wishes actually matter. Detailed instructions spare your loved ones painful guesswork and disagreement later.
• Talk it through with your agent. Once your documents exist, sit down with your agent and walk through both the living will and the power of attorney together. How well your agent understands your wishes directly shapes the care you'll receive if you can't speak up yourself. Handing over a copy without a conversation isn't enough — your agent may read it differently than you intend. And revisit the conversation over time, since your wishes can shift as circumstances change.
• Get a copy into your medical file. File your living will and power of attorney with any doctor or health care provider you see regularly. Even a perfectly written directive is useless if your provider doesn't know it exists. Many people finish these documents and then tuck them away at home with the rest of their estate plan, assuming they'll surface when needed. But in an emergency, your provider may need the document immediately, and retrieving it — or tracking down your agent's copy — may not be practical. Give your provider a copy to keep on hand.