The facts about advance directives

Advance directives are documents that detail your wishes for your care if you're incapacitated or terminally ill and need someone to make medical decisions for you.

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by Ronna L. DeLoe, Esq.
updated May 11, 2023 ·  3min read

An advance directive is usually synonymous with a living will. It specifies what type of medical care you want if you're unable to communicate with your doctor at or near the end of your life.

In many states, advance directives may also include both a living will and a healthcare power of attorney (POA). In some states, your attorney can combine a living will and a healthcare POA in one document.

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What is the purpose of a living will?

A living will is an advance directive that allows you to make informed decisions about medical treatments you may want or don't want should you become terminally ill or permanently incapacitated.

The time to make a living will is when you're healthy or before you have surgery. It's best to make a living will when you're young, as unforeseen events can happen. You don't want your family fighting or having to guess what you'd want if you become incapacitated.

Living wills are important because they're usually detailed and explain what you want in most circumstances.

When does a living will take effect?

A living will takes effect when one doctor—or sometimes two, depending on your state or what's in your living will—determines that you're:

  • Either permanently incapacitated or terminally ill
  • That you cannot communicate in any way, including by gestures
  • That your condition qualifies as permanent incapacitation or terminal illness under your state's law

For a living will to take effect, the treating physician must certify in writing that you are in such condition. At that point, the living will determines your treatment or care.

What can a living will include?

A living will can include which treatments you want should you become permanently incapacitated or which treatments you don't want. Some of these requests include permitting or not permitting:

  • Resuscitation or do-not-resuscitate (DNR) orders
  • Feeding tubes
  • Use of oxygen by intubation or by other means, and dialysis
  • Assisted feeding and hydration
  • Pain medication
  • Organ donation
  • What type of funeral you want, such as burial or cremation
  • Who you want, and don't want, making decisions for you
  • Blood transfusions and any surgery
  • Active intervention for purposes of changing your incapacitation
  • Whether you want to remain in the hospital or go home
  • Medication

Ensure your living will is clear so that it communicates exactly what you want and what you don't want. Clarity will help avoid any confusion.

What is the purpose of a healthcare power of attorney?

healthcare POA is a type of advance directive, but it's broader in scope than a living will. If you give someone, called your agent, a healthcare POA, you're allowing them to make medical decisions when you're unable to do so.

These medical decisions are not end-of-life decisions, unlike the situations applicable to living wills. Instead, such decisions involve medical care when you're temporarily incapacitated or temporarily unable to communicate.

You can have a successor healthcare agent if you so desire. This is beneficial if, for some reason, your primary agent cannot perform their healthcare POA duties.

Likewise, you can have one agent act as both healthcare POA and as the agent appointed under your living will. That agent must follow the instructions spelled out in each document.

Why you should have both types of advance directives

To fully protect yourself, it's important to have both a living will and a healthcare POA. Both advance directives are crucial to have a comprehensive medical plan in place. These documents also are essential estate planning tools.

Both a living will and a healthcare POA protect you during your lifetime if, for example, you're unable to communicate because you're incapacitated or are under anesthesia, or if you're near the end of your life.

While no one wants to dwell on these situations, it's a good idea to have these documents in place so you'll never have to worry about healthcare scenarios that are beyond your control.

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Ronna L. DeLoe, Esq.

About the Author

Ronna L. DeLoe, Esq.

Ronna L. DeLoe is a freelance writer and a published author who has written hundreds of legal articles. She does family … Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.