power of attorney vs advance directive

The Difference Between ‘Power of Attorney’ and ‘Advanced Directive’

There are several types of documentation giving individuals varying degrees of authority regarding the legal and medical issues of other people. These documents can sometimes be confusing and difficult to differentiate. It is important, however, to understand what type of authority is given in each instance. The following information describes the differences between a power of attorney and advance directives, specifically a living will.

Power of Attorney vs Advance Directives

A living will, also known as Advance Directive, details a person’s preferences regarding certain types of life-sustaining treatments. Life-sustaining treatments can include feeding tubes, mechanical respiration, and cardiac resuscitation. A power of attorney gives someone the power to speak for another individual should that individual become incapacitated. A power of attorney basically gives a person the right to make binding decisions on behalf of another individual. It’s possible to have a power of attorney for medical issues while a different person could be power of attorney for making financial decisions. According to Nolo.com , a medical power of attorney is sometimes referred to as a health care proxy or surrogate.

Cases Involving Power of Attorney and Advance Directive

There are several ways in which power of attorney and living wills can affect individuals in everyday situations. Nextavenue.org explains a variety of cases and situations that involve power of attorney. For example, if a person doesn’t want the financial responsibility for the estate of a spouse if he or she passes away, power of attorney can be given to another person. Estate planning and various business decisions can seem overwhelming. In this case it makes sense for certain responsibilities to be delegated to the agent, or attorney-in-fact.

ElderLawAnswers cites a case in 2004 in which a living will trumped the decisions of the power of attorney. In 1998 Hanford Pinette executed a living will stating that if there were no probability of recovery from a terminal condition he wanted to die naturally. He also added a health care proxy, giving his wife power of attorney. Years later, when Mr. Pinette was hooked up to life support, his wife insisted that care be continued. The case went to court to determine whether a living will or power of attorney should prevail. A circuit court judge in Florida eventually ruled that the living will would be honored despite the wife’s objections. Because of various and often unforeseen circumstances that can occur, as well as the fact that laws differ from state to state, it’s imperative to consult an attorney when writing any type of living will or power of attorney.

The Role of an Attorney in Creating These Documents

In regard to important legal matters such as preparing a living will or power of attorney, it’s highly recommended that a competent attorney be involved in the process. Because laws vary from state to state and specific issues related to your particular situation are going to be unique, an experienced attorney is needed to avoid difficulties and confusion down the road.

It should also be noted that some states don’t honor living wills without a health care proxy. Other states may not honor living wills that have been written outside of their state, particularly if certain laws are different in each of the states. This is another reason why you would need a lawyer when writing and putting a living will or power of attorney into place.

If you are ready to create a living will or assign a power of attorney, the attorneys at Odle Law LLC have years of experience preparing these documents and would love to help you!

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