With the Schiavo case on many people’s minds, here is a public service from RedState. Keep in mind, I practice law in Georgia. Consult with a lawyer in your state on this issue, but here is some practical information.
Most, if not all, states have both Living Wills and Durable Health Care Powers of Attorney (“DHCPOA”). These documents are not estate planning tools per se, but rather life planning tools. Both allow you to make decisions about your future health care in the present, before you go into a state of being where you cannot make such decisions.
The Living Will is the more general of the two documents. I encourage clients to do both, but a Living Will alone suits many people. A Living Will allows you, in a general way, to dictate the steps a medical care provider and your family should take when the time comes that you cannot direct those steps yourself. For example, if you are in a non-responsive state, do you want nourishment, hydration, only one, or none?1 If your heart stops, do you want to be resuscitated? If you are pregnant, do you want steps to be taken to save you or your child if only one is possible? A Living Will can provide the answers to these questions when you cannot.
A DHCPOA goes into more detail than a Living Will. In the DHCPOA, the form of which is generally set forth in a statute, an individual can direct that a certain person make the health care decisions for the individual when the individual is no longer able to do so himself. The DHCPOA allows the individual to restrict what steps can be taken, like a living will, but otherwise delegates healthcare decision making power to a named third party. Additionally, a DHCPOA usually allows a person to designate a third party as the individual’s desired legal guardian should one become necessary — and that person does not have to be the same third party who is designated to initially make healthcare decisions. Lastly, the DHCPOA allows potential future invalids to set out a chain of custody, i.e. if third party X dies, I want third party y to take over, etc.
Both life planning tools are beneficial in planning now for future life changing events. A local attorney can assist you, should you desire either document. Had Terry Schiavo had either document, we most likely would not be where we are today.
1I have done many living wills for doctors and all of them direct through their living wills that, should they be in a vegetative state, they want food withheld, but never water. All have told me that you’ll die without food, but withholding water, as is being done in the Schiavo case, is gruesome to see.