Duerksen Law

Both are documents that are used to make advance planning for medical conditions that may arise in the future. 

• A health care power of attorney is generally given to enable medical decisions to be made by a surrogate decision maker when an individual is unconscious. 
• A living will is an advance declaration of a person’s desired medical treatment in certain specifically defined medical situations.
  

A health care power of attorney is usually utilized in situations when an individual is unconscious. It is likely that the individual will return to consciousness and be able to make his or her own decisions again. A living will is generally used in the situation where an individual is unconscious. It is unlikely that they will ever be able to make decisions on their own again.

A health care power of attorney is a legal document under which you give another individual the ability to make medical decisions for you when you are unable to do so. It is authorized by statute, A.R.S. §36-3221, et.seq., and the decisions made by the medical decision maker have the same effect as if you had made them yourself. The decision maker has broad discretion in the decisions that he or she may make, however, the law requires that the decision maker implement your wishes to the best of their ability to determine what you may have wanted in any given situation.

One final note. While a health care power of attorney technically gives a decision maker the right to make life and death decisions many health care providers are uncomfortable about following those instructions without a living will. Thus, in many cases it is wise to have both a living will and a health care power of attorney.

A living will is an individual’s written declaration as to what type of medical care they desire in the event of terminal illness or injury, or should they ever be in a vegetative state. It generally consists of two parts: 

• The first part states when the living will takes effect. For example, “When I am unconscious and two doctors have determined that I am terminally ill, terminally injured, or am in a persistent vegetative state. 
• The second part gives the instructions that are to be followed once the living will takes effect. For example, “Do not maintain my life by mechanical means, Do not give me food or fluid by tube, etc…

A living will is a legal document, and the specified form that it must be in is defined by the Arizona Revised Statues. (A.R.S. §36-3261) If all the requirements set forth by statute are complied with, the living will must be obeyed, and health care providers are required to adhere to the terms of the living will. Conversely, health care providers are provided with legal protection from claims that may arise out of their obeying the terms of a living will.

In closing, the Cruzan decision out of the Supreme Court reinforces the point that if you have desires that you want followed, it is highly advisable to convert those desires to writing through a living will. The legal requirements are easy to meet and blank forms for living wills & health care powers of attorney can be obtained from a wide variety of sources. You can find them at senior citizen’s groups, stationary stores, health clinics, etc 

If you desire assistance, most attorney’s would be able to assist you in preparing a living will and/or a health care power of attorney for a nominal charge.

A financial power of attorney names an individual to act on your behalf with respect to your finances if you are unable to handle things yourself. We prefer to do a Springing Power of Attorney that only takes effect if you are medically certified as unable to handle your finances.

The state will write one for you. Most people prefer to write their own.

Even if resources are limited, having instructions will certainly help those you leave behind. Questions such as: who will care for the children, who gets grandpa’s WWI collection, will you be buried or cremated, are best answered by you. 

Remember, failure to plan is planning to fail.

Your initial consultation is $175 which is fully creditable towards the legal services you select. During this consultation we will help you establish your legal plan, which will determine the final cost of your fees.

Remember, failure to plan is planning to fail.