When planning for the future, especially regarding medical and financial decisions, two important legal documents come into play: Power of Attorney (POA) and Advance Directive. Both serve crucial roles in ensuring your wishes are honored, but they function differently and apply in different circumstances.
This topic explores the differences between Power of Attorney and Advance Directive, their purposes, and when you might need one or both.
What Is a Power of Attorney?
A Power of Attorney (POA) is a legal document that allows an individual (the principal) to appoint someone else (the agent or attorney-in-fact) to make decisions on their behalf. A POA can cover financial, medical, or legal matters, depending on the type created.
Types of Power of Attorney
- General Power of Attorney
- Grants broad authority over financial and legal matters.
- Ends if the principal becomes incapacitated or passes away.
- Durable Power of Attorney
- Remains in effect even if the principal becomes incapacitated.
- Used to ensure someone can manage financial or healthcare decisions if the principal is unable to do so.
- Medical Power of Attorney (Healthcare POA)
- Specifically allows the agent to make medical decisions if the principal is unable to communicate.
- Only applies when the principal is deemed medically incapacitated.
What Is an Advance Directive?
An Advance Directive is a legal document that outlines an individual’s medical treatment preferences in case they become unable to express their wishes. It ensures that healthcare providers follow the principal’s end-of-life care preferences.
Types of Advance Directives
- Living Will
- Specifies medical treatments a person wants or does not want in case of terminal illness or incapacity.
- Covers preferences for life-sustaining treatments, such as ventilators, feeding tubes, and resuscitation.
- Do Not Resuscitate (DNR) Order
- States that the individual does not want CPR (cardiopulmonary resuscitation) if their heart stops or they stop breathing.
- A DNR is usually part of a Living Will or a separate order issued by a doctor.
- POLST (Physician Orders for Life-Sustaining Treatment)
- A doctor-signed medical order that specifies treatment preferences in serious health conditions.
- Used for patients with chronic or terminal illnesses.
Key Differences Between Power of Attorney and Advance Directive
| Feature | Power of Attorney | Advance Directive |
|---|---|---|
| Purpose | Appoints an agent to make decisions on behalf of the principal. | Provides specific instructions for medical care. |
| Scope | Covers financial, legal, or medical decisions, depending on the type. | Focuses only on healthcare preferences. |
| Activation | Becomes effective immediately or upon incapacity, depending on the type. | Applies only when the person is terminally ill or incapacitated. |
| Decision-Maker | The agent (attorney-in-fact) makes decisions. | The document itself provides guidance; doctors follow it. |
| Flexibility | The agent has some discretion in making decisions. | Provides specific, pre-determined instructions. |
| Revocation | The principal can revoke it anytime if mentally competent. | Can be revoked or updated as long as the principal is competent. |
When to Use a Power of Attorney vs an Advance Directive
Use a Power of Attorney When:
- You need someone to manage your financial affairs if you are unable to do so.
- You want a trusted individual to make medical decisions on your behalf.
- You want to ensure your business and assets are managed properly in case of incapacity.
Use an Advance Directive When:
- You want to document your specific healthcare preferences in case of a medical emergency.
- You have strong opinions about life-sustaining treatments and want to avoid unwanted medical interventions.
- You want to make end-of-life decisions in advance to relieve your family of making difficult choices.
Can You Have Both a Power of Attorney and an Advance Directive?
Yes. Many people have both to cover different aspects of decision-making:
- A Healthcare POA ensures that a trusted agent can make medical decisions beyond what an Advance Directive covers.
- An Advance Directive provides clear instructions to doctors and removes the burden from family members.
Together, these documents complement each other and ensure that all aspects of your care are covered.
How to Create a Power of Attorney and an Advance Directive
1. Identify Your Needs
- Decide whether you need a General, Durable, or Medical POA.
- Determine your preferences for end-of-life care for your Advance Directive.
2. Choose a Trusted Agent
- Select someone responsible and willing to act in your best interests.
- Ensure the agent understands your wishes and is comfortable making tough decisions.
3. Draft the Documents
- Use state-approved forms for both POA and Advance Directive.
- Consult an attorney if needed to ensure legal compliance.
4. Sign and Notarize
- Most states require both documents to be signed and notarized.
- Some states require witnesses, especially for an Advance Directive.
5. Distribute Copies
- Give copies to your agent, family members, and healthcare providers.
- Keep an easily accessible copy for emergencies.
Frequently Asked Questions
1. Does a Power of Attorney Override an Advance Directive?
No. A Medical Power of Attorney allows the agent to make medical decisions only if the Advance Directive does not specify instructions. If an Advance Directive includes specific preferences, doctors must follow it first before consulting the agent.
2. Can a Power of Attorney Make End-of-Life Decisions?
Yes, but only if the Advance Directive does not provide clear instructions. If the Advance Directive states do not resuscitate (DNR) or do not use a ventilator, the agent cannot override these instructions.
3. Who Should Be My Agent in a Power of Attorney?
Choose someone who:
- Understands your values and medical preferences.
- Can make decisions under pressure.
- Communicates well with doctors and family members.
4. Can I Change or Revoke These Documents?
Yes. As long as you are mentally competent, you can update, revoke, or replace both documents at any time.
5. Do These Documents Expire?
- A Power of Attorney can have an expiration date or remain valid indefinitely.
- An Advance Directive does not expire but should be reviewed periodically to ensure it reflects your current wishes.
Both Power of Attorney and Advance Directive play essential roles in future planning. While a Power of Attorney grants decision-making authority to an agent, an Advance Directive provides direct instructions for medical care.
For comprehensive protection, it is advisable to have both documents in place. This ensures that your financial, legal, and healthcare decisions are handled according to your preferences, minimizing confusion and burden on loved ones.