Living Will vs. POA

POA:

A power of attorney (POA) for personal care, as it is called in most parts of Canada, or a POA for health, as it is called in many parts of the US, is a document by which a person gives someone else decision-making authority over their health care, nutrition, safety, hygiene, admission to a care facility, and even end-of-life decisions.

The person given decision-making authority in the POA document, called the “attorney”, can only make decisions if the person who made the POA document loses capacity to make their own personal care decisions, such as if they develop advanced dementia, sustain a brain injury, or are in a coma.

Living Will:

In most jurisdictions in Canada, the person making the POA will give very broad decision-making authority to the person they appoint in the POA, to make all healthcare decisions.  However, the POA doesn’t typically include guidance on specific situations (dementia versus cancer versus ALS versus brain death). It can be a good idea to consider in advance what a person would want to happen in various healthcare scenarios and to make one’s wishes or instructions known.  Typically, a person will make these more detailed health and treatment instructions known by making a document called a “Living Will” or an “Advance Health Care Directive. (These terms are used interchangeably in different jurisdictions). Such instructions are unique to each individual and can apply in acute or long-term situations.

Examples of wishes or directives you might provide are:

“If I am in a vegetative state as a result of injury or illness causing brain death, with no chance of a substantial recovery or quality of life, and if I then suffer a heart attack, it is my wish not to be resuscitated.”

“I want to remain living in my own home, even if I become a danger to  myself. I do not want to reside in a care facility or nursing home.”

“My [religion / family / pets / language] are extremely important to me and I want to have as much contact with them as possible.”

“To help with pain, I would prefer Chinese medicine to Western medicine.”

Is It Better to Write These Wishes in the POA or the Living Will?

While it is possible that these instructions can be written into the POA for personal care, they can also be written in the Advance Health Care Directive or Living Will. There are pros and cons of each option.

The benefit of putting these specific, detailed wishes and preferences in the POA, are that they are readily seen by the person appointed as attorney for personal care, and by any health care professionals reading the POA. The disadvantage is that there are formal requirements for signing POA documents in some jurisdictions, including needing two witnesses in the room at the same time or requiring the POA to be drafted or witnessed by a lawyer. So, if a person changes their wishes, they will need to formally sign new POA documents. The new POA revokes the prior POA. This can cost more and take longer.

In contrast, the advantage of an Advance Care Directive or Living Will is that it can often be written and revised by a person themselves, and without the formality of witnessing like a POA. The person can then quickly provide the document to their attorney for personal care and to their health care team. However, the disadvantage is that a person who makes or revises this document themselves may give conflicting or poorly-worded instructions, may fail to provide the date or their signature on the document, or may be at increased risk of making the document at a time they lacked mental capacity or were being unduly influenced. In contrast, the process of making a POA through a lawyer typically engages the lawyer’s professional responsibility to ensure dates and signatures are correct, and to screen for capacity and undue influence to protect their client.