The Living Will and the Power of Attorney for Personal Care (the “POAPC”) are believed by many members of the public to be one and the same thing. Although they are often incorporated into the same document, they serve entirely different functions. Recent studies indicate that the Living Will is generally an ineffective legal document from a doctor’s perspective. Clients, particularly those of advanced age or experiencing health issues, should ensure that they have an effective continuing POAPC in place.
Under a POAPC, the signatory appoints another individual (the attorney) to make future healthcare decisions. In the modern form, the POAPC is expressed to be “continuing” as its legal validity continues even after the signatory suffers any level of mental incompetence or physical disability preventing him or her from providing healthcare instructions. From the doctor’s perspective, the continuing POAPC is the document of last resort when consent cannot be obtained from the patient. The Living Will is a statement by the signatory of his or her desire for particular types of healthcare in the future, most often in circumstances where life support is required. The Living Will is often ignored by doctors for a number of reasons. One reason is that the Living Will may be interpreted as an expression of mere desire as opposed to a document of strict instruction. If the signatory states that he or she merely “wishes” that life support be discontinued at a certain time, that wish need not and often will not be followed by doctors. Another reason is that the prediction of which particular medical malady a person may ultimately suffer and which medical procedure may be considered or preferred on any given day in the future is highly speculative. As one doctor has stated “in medicine, you can’t talk about what you want – you can only talk about what you don’t want”. Many other practical issues concerning the Living Will have been identified over the years. The fundamental medical issue remains that, even if the language is perfectly clear, it is difficult for the doctor to conclude that the patient consented to a procedure knowing all of the risks and benefits as known to the doctor on the day the decision is to be made. The possible lack of informed consent causes the physician to pause and ultimately err on the side of providing care. Clients with strong opinions on their future medical care may continue to instruct counsel to draft a Living Will, however, a clearly worded, continuing POAPC remains the legal document of choice.