The FAQ section found in the Estate Planning Companion answers some of the questions questions people ask most frequently about estate planning and related issues.
Topics include:
- Estate Planning Issues
- Family and Personal Issues
- Other Common Issues
Health and Medical
What is the diference between a Living Will and a Health Care Power of Attorney?
A living will documents your wishes concerning withdrawing or withholding life-sustaining treatment if you have a terminal condition or are in an irreversible coma. A living will only becomes effective if you are unable to make health care decisions for yourself, for example, if you’re unconscious. In some states, a living will is effective only if you are expected to die within a relatively short time unless you receive life-sustaining treatment. Other states allow you to direct that even artificially administered nutrition and hydration can be withdrawn or withheld under these circumstances.
Generally, a health care power of attorney allows you to document the same wishes as a living will. However, a health care power of attorney also allows you to designate an "agent" to make health care decisions on your behalf if you are unable to make those decisions. For example, if you suffer an illness and are unconscious, under a health care power of attorney your agent can make health care decisions for you. Such decisions would include consent to surgery and even the withholding and withdrawing of life-sustaining treatment if permitted by the document.
Which health care document is right for me?
Health care laws vary somewhat from state to state. This program assumes that you wish to have a health care document based on the laws of your state. It also assumes that you are not completely sure that you understand the differences between a Living Will, Health Care Power of Attorney, and advance health care directive well enough to be completely sure which document you want. Further, your state may not specifically offer all three alternatives. And to make things more confusing, some states give their health care documents unusual names. For example, the Living Will might have a title of "Declaration Relating to Use of Life-Sustaining Procedures."
Because of these difficulties, this program leads you through the same set of questions regardless of whether you pick Living Will, Health Care Power of Attorney, or Advance Health Care Directive. You make the health care choices that you want by answering the questions--without worrying about which form to use. The program then uses your answers to provide you with a completed health care document in the proper format.
For example, if you answered "Living Will" questions about what kind of medical care should be provided or withheld but answered "no" to the "Health Care Power of Attorney" questions about having an agent make decisions for you, you would receive your state's version of the Living Will.
In addition, your document will use terminology that is unique to your state. For example, if your state uses the term "death delaying procedures" instead of the more common "life sustaining procedures," your state's term will be used. And, if your state has a preferred format for opening or closing paragraphs, your form will follow your state's suggested format.
Finally, if your state provides a form with an unusual title, this program will supply your state's preferred title.
If your answers indicate that you need more than one form, the program will provide both forms. For example, your state may have a separate Living Will form and a separate Health Care Power of Attorney form (instead of one Advance Directive form that combines both forms). If you answer both the "Living Will" questions about what kind of medical care should be provided or withheld, and also the "Health Care Power of Attorney" questions about having an agent make decisions for you, you would receive your state's version of the Living Will and also your state's version of the Health Care Power of Attorney.
Will my health care document be valid in another state?
If you live in Iowa and complete a Living Will that complies with Iowa law but you travel to another state, will that other state honor your Iowa Living Will? It depends.
Many states recognize an "out-of-state" Living Will, Health Care Power of Attorney, or Advance Directive as long as the document complies with the laws of the state where it was signed or its own laws. In several states, out-of-state documents will only be valid to the extent they are consistent with the laws of the new state. Some states do not address this topic.
However, even if your health care document, such as a Living Will, does not strictly comply with the laws of a particular state, it is quite possible that a physician or other health care provider in that state will still consider the document as important information about your wishes.
When, if ever, should I complete more than one state's form?
If you move to a new state, it is recommended that you complete a new health care document (Living Will, Health Care Power of Attorney, or Advance Directive) for the new state. Even though your prior document might be valid in the new state, you can avoid potential problems by completing a new document that uses the terminology and phrases that may be preferred by that state. Remember that new documents will generally supersede old ones--in other words, executing a new Living Will has the effect of revoking a prior Living Will.
If you live in two states (for example, if you live in the south in the winter and the north in the summer), it is recommended that you obtain specific information about both states, perhaps by consulting with your attorney.
As a general rule, you should avoid having one document for one state and another document for the other state. Two different forms could confuse your physician as to which one controls, and it is unlikely that the documents would be identical. Further, the document that you signed most recently might have the effect of revoking the earlier one.
The particular statutes of the two states involved will help determine which state's document is best for you, or if your situation is such that two documents might be appropriate.
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