Health care power of attorney vs living will: you probably need both

These two documents sit side by side in most estate plans, and they're easy to mix up. Both deal with medical care. Both only matter when you can't speak for yourself.

But they do very different jobs. One names a person. The other writes down what you want. This post explains the difference and why they work best together. It belongs to our guide to the four roles in every estate plan, where the health care agent is the first role.

The difference in one table

Together they make up what is usually called an advance directive. Our post on what an advance directive is has a checklist of what to put in one.

What a health care power of attorney does

A health care power of attorney names your agent: the person who talks with your doctors when you can't. You may also hear health care proxy, representative or surrogate (National Institute on Aging). They mean much the same thing.

In Washington, an agent with general health care authority can give informed consent on your behalf. They can also act as your representative under HIPAA, the federal health privacy law, to see your medical information (RCW 11.125.400).

One Washington detail matters. A power of attorney covers health care decisions only if it expressly grants that authority (RCW 11.125.240). A financial power of attorney that never mentions health care doesn't cover it. Our post on what a medical power of attorney is covers the details.

What a living will does

A living will records your wishes about treatment that would only prolong dying. In Washington, the statutory health care directive applies when you are diagnosed with a terminal condition or a permanent unconscious condition (RCW 70.122.030).

The form asks whether you want artificially provided nutrition and hydration in those situations. You can also add your own specific directions.

The narrow scope is deliberate. It gives clear, legally recognized instructions for the moments that families find hardest. But it means a living will says nothing about most medical decisions.

Where each one falls short

A living will without an agent. Picture a stroke with a real chance of recovery. Nothing is terminal, so a Washington health care directive doesn't apply. Someone still has to decide about a feeding tube for the next few weeks, or about moving to rehab.

Without a named agent, Washington's default list decides who that someone is (RCW 7.70.065). That may not be who you'd choose.

An agent without a living will. Your agent can decide, but they may be guessing. Even a loving, steady person can freeze when asked whether to continue a ventilator. Without your words in writing, they also carry the weight of the choice and any family disagreement.

Both together. Your agent has authority to decide and your written wishes to lean on. Washington's statutory directive form says this directly. If someone is appointed to decide for you through a durable power of attorney, the directive asks that they be guided by it (RCW 70.122.030).

Three situations, and which document speaks

In every row, the agent has a job. In only one row does the living will speak on its own. That is why most people want both.

What if they seem to disagree?

Washington's law is built so they work together. The statute recognizes that your right to control your health care may be exercised by someone who validly holds your durable power of attorney for health care (RCW 70.122.010).

Anyone deciding for you in Washington must first decide in good faith what you would want. Only if that can't be determined do they decide based on your best interests (RCW 7.70.065). Your living will is the clearest evidence of what you would want.

The simplest way to avoid conflict is to talk. Give your agent a copy of your living will and walk through it together. Our post on writing down your treatment preferences helps with the words.

Here is a typical case, a composite

Margaret is 68 and widowed. She has a health care directive, signed years ago, and nothing else. After a fall, she spends a week in the hospital unable to make decisions.

Her directive doesn't apply, because her condition isn't terminal. Her two adult children share the top spot on Washington's list. The law requires them to agree (RCW 7.70.065). They disagree about a procedure.

Suppose Margaret had also named one child, or a trusted friend, as her health care agent. That person would rank above her children on the list. The decision would rest with the person she chose.

Choosing your agent

A living will takes thought. Choosing an agent takes a conversation. Look for someone who is willing, calm, reachable and ready to follow your wishes even when they'd choose differently. Our post on how to choose a medical power of attorney has nine questions to ask.

Name a backup too. If your first choice is your own age or far away, a professional can stand behind them. Kinly's membership, for example, includes a medical power of attorney drafted for your state, and Trella Trust Company can be named first or as backup.

The health care agent is one of four roles in a plan. The others handle money, the estate and any trust. If you're wondering how the later roles differ, see executor vs trustee. And for what happens if nobody is named at all, see who decides when you can't.

Common questions

Is a health care power of attorney the same as a living will?

No. A health care power of attorney names a person to make medical decisions for you. A living will records your wishes about life-sustaining treatment in specific situations. Many people sign both, and together they're often called an advance directive.

Which is more important, a living will or a health care power of attorney?

Both matter, but a health care power of attorney covers far more situations. In Washington, a living will applies only in a terminal or permanent unconscious condition. Your agent can decide in any situation where you can't, guided by your living will.

Does my health care agent have to follow my living will?

Washington's statutory directive asks anyone appointed to decide for you to be guided by it. Washington law also requires a substitute decision-maker to decide in good faith as you would have. Your written wishes are the strongest evidence of that.

Can I have a living will without naming an agent?

Yes. But if you can't decide in a situation your living will doesn't cover, Washington's default list in RCW 7.70.065 decides who consents. That list starts with a guardian, then a spouse or registered domestic partner, then adult children.

Does my financial power of attorney cover health care?

Not automatically. In Washington, a power of attorney covers health care decisions only if it expressly says so. Many people sign a separate document for health care, or make sure their power of attorney grants health care authority in clear words.

Sources

• RCW 11.125: Uniform Power of Attorney Act (Washington State Legislature)
• RCW 11.125.050: Power of attorney, requirements (Washington State Legislature)
• RCW 11.125.240: Authority that must be expressly granted (Washington State Legislature)
• RCW 11.125.400: Agent authority, health care (Washington State Legislature)
• RCW 70.122.010: Natural Death Act, legislative findings (Washington State Legislature)
• RCW 70.122.030: Health care directive (Washington State Legislature)
• RCW 7.70.065: Persons authorized to consent for patients without capacity (Washington State Legislature)
• Advance Care Planning: Advance Directives for Health Care (National Institute on Aging)