Living wills and durable powers of attorney (DPAs) are vital estate planning tools with distinct purposes. A living will outlines medical treatment preferences, becoming effective only under specific health conditions, while a DPA grants broad financial and legal authority to an agent, typically effective immediately and continuing through incapacity. Both documents can be revoked by the creator if mentally competent but function differently upon incapacity. It is crucial to consult with an estate planning attorney for proper execution according to state laws.
What is the Difference Between a Living Will and a Durable Power of Attorney?
A living will and a durable power of attorney are two distinct legal documents that serve different purposes in estate planning. Here's a detailed comparison:
Living Will
- Definition: A living will, also known as an advance directive or a health care directive, is a legal document that allows you to specify your wishes regarding medical treatment in the event that you become unable to communicate those wishes yourself, typically due to illness or injury.
- Scope: It usually addresses end-of-life decisions, such as whether you want life-sustaining treatments like mechanical ventilation, tube feeding, or resuscitation if you are in a terminal condition or a permanent vegetative state.
- Timing: A living will only takes effect when you are deemed incapacitated by a physician and can no longer make decisions for yourself.
- Revocation: You can revoke a living will at any time while you are still mentally competent.
Examples of Living Will Provisions:
- Refusing or accepting certain types of life-prolonging treatments
- Requesting pain relief measures
- Expressing preferences about organ donation
Durable Power of Attorney
- Definition: A durable power of attorney (DPA) is a legal instrument that grants authority to a designated individual (known as the "agent" or "attorney-in-fact") to act on your behalf in financial and legal matters, even after you become incapacitated.
- Scope: This document gives broad authority and can cover activities such as managing bank accounts, paying bills, selling property, making investment decisions, and more.
- Timing: The DPA typically takes effect immediately upon execution unless specified otherwise, and it remains in effect if you become incapacitated.
- Revocation: Like a living will, a DPA can be revoked by the principal (the person creating the document) as long as they have mental capacity.
Examples of Durable Power of Attorney Authority:
- Managing daily financial tasks
- Signing contracts on behalf of the principal
- Making long-term financial plans or changes
Key Differences:
1. Purpose: A living will focuses on medical treatment preferences, whereas a durable power of attorney deals with financial and legal decision-making.
2. Effectiveness: A living will only applies under specific medical conditions, while a DPA is often effective immediately and continues through incapacity.
3. Agents: A living will does not involve an agent acting on your behalf; it's purely instructional. In contrast, a DPA designates an agent to act in your place.
4. Revocation: Both documents allow for revocation by the creator while competent but function differently upon incapacity.
In conclusion, both documents play crucial roles in ensuring your wishes are respected in different scenarios. A living will guides medical decisions should you be unable to articulate them, while a durable power of attorney ensures continuity in your financial affairs by appointing a trusted representative. It's essential to consult with an estate planning attorney to ensure these documents meet your specific needs and are properly executed according to state laws.