Living Wills, Health Care Proxies and Powers of Attorney

It is important for all adults to have advance directives in place to ensure that your wishes will be carried out if you become incapacitated. There are three basic types of advance directives: a living will, a health care proxy and a power of attorney.

A living will is a document in which you state your wishes regarding medical treatment. It can include instructions about the termination of life support and artificial nutrition and hydration. Because your wishes expressed in a living will are open to interpretation by those providing your medical care, it is important to have a health care proxy.

A health care proxy is a written instrument in which you appoint someone you trust (an “agent”) to make decisions about your medical treatment, if you are unable to do so. These decisions include whether to terminate life support and artificial nutrition and hydration. Since this power is SO broad, it is important that you choose someone that you, literally, trust with your life. Note, that you cannot name more than one agent to act at a time.

While it can be a difficult discussion to have, it is important to let your health care agent know your wishes. You should discuss how you wish to be treated if you are in a coma or are severely mentally impaired and have a physical condition, treatment of which would make you only physically (and not mentally) well and, if not treated, will result in your death. You should discuss your desire for painkillers and whether you want painkillers if they hasten your death.

A durable power of attorney is a document in which you (the “principal”) give another person (the “agent”) the power to act in your place in managing your assets. These powers can be extremely broad, allowing the agent to make gifts, create revocable trusts, invest assets and do anything you can do with your assets personally. The agent, however, cannot be given the power to make or revoke a Will for you. You determine the scope of the powers you wish to grant your agent.

You may name one or more agents under a power of attorney, and you can appoint a successor agent in the event the first person(s) you’ve named cannot act. Note that a “durable” power of attorney is effective upon full execution of the document and does not become inoperative upon your capacity. Upon your death, however, your power of attorney becomes ineffective. That’s when your other estate planning documents take over.

This article appeared in the February 2025 issue of Stroll Lloyd Harbor.