7 COMMON MISCONCEPTIONS ABOUT LIVING WILLS AND HEALTH CARE POWER OF ATTORNEYS
MISCONCEPTION #1: I CAN FIND A LIVING WILL OR HEALTHCARE POA FORM ON THE INTERNET
This is partially true. Each state usually has its own living will and health care POA forms. Often both documents are combined in one form. Use of the form may or may not be mandatory depending on the state. These statutory forms might be found on one of your state’s official pages. If you can verify that you have the most current state form, it can be okay to use. However, if you conduct a search for “living will form” you might find multiple forms that look like they might be correct but are not specific to your state. Make sure to do your due diligence and confirm you are using the correct and most current form. The safest choice is to have your living will and health care POA prepared by your estate planning attorney as part of your comprehensive estate plan. Then you can be assured that you have the correct form correctly filled out and executed.
MISCONCEPTION #2. IF I HAVE A LIVING WILL, I DON’T NEED A HEALTH CARE POA
For optimal protection you really need both a living will and health care POA. The documents apply in different circumstances. A living will outlines your preferences to the doctors who are treating you at the time you are terminally ill or in a vegetative state. A health care POA appoints a health care agent to make your health decisions at any time you are unable to do so yourself. Additionally, a health care POA can cover a wide range of treatment issues that might arise when you are not competent to make your own decisions but are not terminally ill or permanently unconscious.
MISCONCEPTION #3. A LIVING WILL GOES INTO EFFECT WHEN YOU ARE TEMPORARILY INCAPACITATED
A living will can only be activated when you are incapacitated and your condition is terminal or you are in a persistent vegetative state. Usually, at least one doctor must certify these requirements are met. For temporary incapacitation, such as a car accident, from which you are expected to recover, the living will has no legal effect. For these situations, you will need a health care POA.
MISCONCEPTION #4: MY LIVING WILL AND HEALTH CARE POA ARE ACTIVE ONCE I SIGN THEM
Each state has its own execution requirements for these documents to be valid. Generally, your signature alone is not enough to make the documents be valid. State law typically requires that your signature be notarized or witnesses by two witnesses. Typically a living will goes into effect when a doctor certifies that you are terminally ill and incompetent to make medical decisions or in a permanently unconscious state. Typically a health care power of attorney goes into effect when a doctor certifies that you are incompetent to make medical decisions. In other words, you are incapable of communicating your wishes or incapable of understanding the consequences of treatment decisions.
MISCONCEPTION #5. MY HEALTHCARE PROVIDERS WILL NOT HONOR MY WISHES AND DOCUMENTS
A doctor who is unable or unwilling to follow your directives is required by rules of professional conduct to transfer your care to another doctor who is willing and able. The best policy is to discuss your wishes with your doctor and share your documents with him or her as soon as they are prepared. If your doctor expresses reservations, you can then decide whether you want to choose another provider.
MISCONCEPTION #6: I CAN HAVE SOMEONE SIGN A LIVING WILL OR HEALTH CARE POA FOR ME IF I AM LEGALLY INCOMPETENT
This is one of the most common misconceptions about legal documents. You must be legally competent to execute legal documents. Once you lack legal capacity you can no longer sign any legal documents including a living will or health care DPOA. The only recourse then is a conservatorship or guardianship proceeding through the court, which is a very costly and time-consuming process.
MISCONCEPTION #7. ONLY ELDERLY OR TERMINALLY ILL PERSONS NEED LIVING WILLS AND HEALTH CARE POAS
Living wills and health care POAs are not just for the sick or elderly. Every adult should consider putting these documents in place. A catastrophic accident or medical crisis rendering a person permanently unconscious could occur at any time. Many people execute living wills and health care POAs as part of a comprehensive estate plan prepared by their estate planning attorney.