What is the Health Care Directive? Is it the same thing as a Power of Attorney for Health Care? What about a Living Will?
Confusion abounds regarding these concepts in the area of estate planning. And, knowing how your various estate planning documents work together is important for you to understand and it’s important for your agents (likely your spouse or children) to understand as well because it is the agent who works to implement your vision.
First, the relevant documents:
1. Health Care Directive (aka “Living Will”)
2. Health Care Power of Attorney
3. Physician’s Order for Life Sustaining Treatment (“POLST”)
The Health Care Directive is a document authorized under RCW 70.122.030. In its basic form, it allows a person to direct that he or she wants life sustaining treatment withheld or withdrawn under certain circumstances. Generally, the circumstances under which a person directs withholding or withdrawal is when diagnosed to be in a terminal condition or in a permanent unconscious condition and where the application of “life-sustaining treatment would serve only to prolong the process of dying….” RCW 70.122.030. A Health Care Directive is used synonymously with a “Living Will.”
The Health Care Directive is a relatively simple document. The statutory example contained in RCW 70.122.030 is about one page in length. In spite of its simplicity, it is a powerful document in a person’s estate plan.
Some hospitals or other health care facilities also offer a Living Will or Health Care Directive form that might be similar to the Washington statutory form or, in some cases, a longer form with more options for the end of life care.
A Health Care Directive works in tandem with a Health Care Power of Attorney to provide instruction from the Principal, and care for the Principal. As a reminder, a Health Care Power of Attorney is a document that allows you (the Principal) to appoint someone (an Agent) to make decisions for your care when you are unable to do so because of incapacity. The Health Care Directive takes priority on the end of life decision to withhold medical treatment, but the agent is still empowered to make other decisions concerning the Principal’s care, treatment, living environment, etc.
In the absence of a Health Care Directive, the agent (usually spouse or children) of the Principal appointed under the Health Care Power of Attorney is charged with determining when to withhold treatment (colloquially: “pull the plug”). That single decision to “pull the plug” is an emotionally charged decision even with a Health Care Directive. Without one, it can be both unnecessarily delayed and incredibly emotionally painful for the agent – not to mention potentially costly.
With a Health Care Directive, you take a portion of the confusion/hesitation/guilt away from the agent because you have told your agent in the Directive – “If I am in this state, please let me have a natural death.”
The third document that adds to the complexity of forms is a POLST. When a person has serious or life-limiting disease, he or she can work with the attending physician to incorporate the end-of-life decisions into a Physician’s Order for Life Sustaining Treatment (“POLST”). The POLST is signed by the patient and the doctor and provides responding medical personnel with clearly delineated instructions on life-sustaining treatment.
So, what do you need? Everyone above the age of 18 should first have a Power of Attorney that includes the power for the agent to make health care decisions. In the absence of a valid Power of Attorney, a costly and time-consuming guardianship would be initiated to determine a person’s care. Accordingly, the Power of Attorney is the priority. Second, the Health Care Directive (or Living Will) should be part of the end-of-life plan. Anecdotally, it appears in my experience that the younger a person, the less likely the person will want to include a Health Care Directive in his or her estate plan. It seems that, to those with youth, death is too remote and the possibility of cure too high. As we age, we come to better accept the inevitability of our own mortality. The final document to consider when a person has a serious or life-limiting disease is the POLST. Talk to your estate planning professional or health care provider for more information.
* Licensed, not practicing.
The opinions voiced in this material are for general information only and not intended to provide specific advice or recommendations for any individual or entity. This information is not intended to be a substitute for specific individualized tax or legal advice. We suggest that you discuss your specific situation with a qualified tax or legal advisor.
Securities offered through LPL Financial, member FINRA/SIPC. Investment advice offered through Cornerstone Wealth Strategies, Inc., a registered investment advisor and separate entity from LPL Financial.