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Frequently Asked Questions FAQ

I don’t want to be kept alive if I am in a “vegetative” condition or with irreversible brain damage. Can I use a living will to state my desires?

Yes. A Living Will is a document spelling out what kind of medical care a person wants in the event of terminal illness and incapacity to communicate one’s wishes. A Living Will can also spell out the kinds of treatment a person does want or does not want in any circumstances. Any competent adult can make a Living Will. The requirements for Living Wills vary from state-to-state. For example, some require witnessing, a standard form of document, or an acknowledgment before a notary. Others are more lenient.

Which is better: a living will or a durable power of attorney for health care?

Some health care providers are more comfortable with one type of document than another. In some states, a living will takes effect only when there is no hope for recovery, while a durable power of attorney takes effect whenever you become unable to make decisions such as during surgery or even when you become temporarily unconscious. However, some state refer to this document as a power of attorney for health care or an advance health-care directive and it combines a living will with a durable power of attorney for health care purposes. In these states a power of attorney for health care or an advance health-care directive becomes effective when your primary physician determines that you are unable to make your own health‑care decisions.

When does power of attorney for health care or living will go into effect, and how long is it effective?

In most states it comes into effect after your doctor certifies that you lack the capacity to make your own health care decisions. Some states allow it to be effective immediately after it is properly executed and delivered to the agent. It is effective indefinitely unless it contains a specific termination date, it is revoked, or the principal regains consciousness and competency.

Who should be my agent for health care decisions?

This is an important decision. You may have several close relatives or friends who would be willing to become your attorney-in-fact for health care purposes. An attorney-in-fact is the person named in a written power of attorney document to act on behalf of the person who signs the document, called the principal. The attorney-in-fact’s power and responsibilities depend on the specific powers granted in the power of attorney document. An attorney-in-fact is an agent of the principal.

 This person should be able to make tough decisions, to speak up in a crisis situation, to understand your values and desires and would speak for you when you are unable to speak for yourself? You should someone you trust and who will really listen to and carry out your desires and values. Make sure that person is willing to assume the responsibility of being your representative. The attorney-in-fact must be at least 18 years old. 

 What if I executed a Power of Attorney for Health Care in one state and then moved to another state?

Your Power of Attorney for Health Care might not be honored in another state. Both the Power of Attorney for Health Care and Living Will are regulated by state laws, and there may be differences in requirements from state to state.
What are the requirements for witnesses to a Power of Attorney for Health Care?

These requirements may vary slightly from state to state, but generally, in order to be valid, your Power of Attorney for Health Care must be signed in the presence of two or more witnesses. The witnesses must also meet certain requirements. They:

  • must be at least 18 years of age;
  • cannot be related to you by blood or marriage;
  • cannot be an heir to any portion of your estate; and
  • cannot be directly responsible for your medical care expenses.

What if the court invalidates my health care directive?

It is possible that a court could invalidate your document if it wasn’t properly completed; for example, if you did not meet your state’s requirements for having the document notarized or witnessed. However, if this happens, it is still likely that any wishes for health care you set out in the document will be followed as long as they are clearly expressed and you were of sound mind when you wrote them down.
What if I had a “second thoughts”?

You may revoke a power of attorney at any time while you are in good state of mind. Make sure you give the copies of your new power of attorney to your physician and your agent (i.e., attorney-in-fact).

What if my agent cannot perform?

It is best to appoint an alternate agent in case your original attorney-in-fact becomes unable or unwilling to act in your behalf.

How will my doctor and hospital know I have a Living Will or a Durable Power of Attorney for Health Care?

You should provide your doctor and your hospital with copies of your Living Will or Power of Attorney for your permanent medical record. Any time you are admitted to a hospital, you will be asked if you have a such a document and your response noted in your medical record.

What if I don’t want a Living Will?

You’re not required to have a Living Will or Power of Attorney for Heath Care if you don’t want one, but it’s a good idea in order to guarantee that your wishes are followed regarding medical care. Otherwise, your family will have to make difficult decisions or incur large expenses and time delays if a legal guardianship or conservatorship is needed. If you become incapacitated and you have no Living Will or Power of Attorney for Heath Care, and your doctor and your family disagree about treatment, your health care decisions may have to be made in a court of law.

Do I need a lawyer in order to create a Living Will or Power of Attorney for Heath Care?

Will the wishes in my Living Will or Power of Attorney for Heath Care?
be honored?

The law requires that health care providers honor your wishes, although sometimes the documents have created conflict when persons have not talked with family members.

What if I want to make changes to my a Living Will or Power of Attorney for Heath Care?

This is not difficult to do. You simply create new documents that cancel out the old documents.

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