If I Have a Living Will, Do I Still Need a Health Care Power of Attorney?

Absolutely. A HCPA (see previous chapter) appoints an agent to act for you; a living will doesn’t.

• A HCPA applies to all medical decisions (unless you specify otherwise); most living wills typically apply only to a few decisions near the end of your life, and are often limited to use if you have a “terminal illness,” which has become a slippery term.

• A HCPA can include specific instructions to your agent about the issues you care most about, or what you want done in particular circumstances.

Some Problems with Living Wills

Living wills are typically either vague (“I don’t want to be kept alive if I’m a burden to anyone”--what does that mean?) or so specific as to be inflexible. It is sometimes a problem in drafting them, and sometimes a problem with the unavoidable uncertainty of when and how we leave this world. In the twilight world at the end of life, all lines are blurred, all colors are gray. It’s simply impossible to predict every possible contingency.

Since living wills are so limited, it is definitely better to use a health care power of attorney unless you have no one whom you can trust to make life and death decisions for you. Some lawyers recommend that you have both a living will and a HCPA, with the HCPA handling other kinds of disability, or gray-area cases where it’s not certain that you’re terminally ill, or your doctor or state law fail to give your wishes due weight. A living will by itself wouldn’t have helped Nancy Cruzan in 1990, for instance, because she wasn’t considered “terminally ill” by her doctors and with artificial nutrition and hydration could have lived as long as 30 more years in a persistently vegetative state. Today, most states cover persistent vegetative state in their living will laws. In any case, a health care power of attorney would have permitted a designated person to make the decision for Nancy Cruzan.

If you use a living will, be sure to update it every few years. Your values and wishes may change, and the law itself may change. A very old living will may not be given as much weight as a more current one.

Finally, despite recent changes in laws, old habits die hard, and many doctors and nurses are still reluctant to turn off life support--even if that’s what a patient wants. Surveys show that medical institutions still routinely overtreat patients with no realistic hope of recovery, ignoring living wills, often angering and tormenting the dying person’s loved ones. That’s why you need an advocate appointed by your HCPA to press your intentions.