Wills and Probate
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What's the Difference Between a Living Will and a Power of Attorney?
Many of us have heard the term "power of attorney" (POA) and know that, basically, it is a written document that allows someone to make decisions on our behalf. The most common use of a POA is to name a person to make legal, financial, or health care decisions for you in the event that you are unable to make them for yourself. Beyond this, what is a power of attorney and how does it differ from a living will?
Health Care Power of Attorney
A POA for health care decisions is similar to a living will, in that it can be a way for your decisions regarding medical care and treatment to be carried out if you can no longer make your wishes known. The difference is that a living will makes your wishes known via a written statement, but by itself does not appoint a person to act on your behalf and make those decisions. A health care POA does do this. Like a living will, a health care POA does not distribute your property after death. This must be accomplished either by a will, a trust, or via intestacy proceedings in probate court.
Durable Power of Attorney
Until recently, a POA was no longer effective if the person became incapacitated or died. However, some states allow what's called a "durable" power of attorney, which will be effective even if you become incapacitated. POA can be drafted to be very broadly and include all types of situations, or be very limited and applicable only to certain specified cases.
A POA can be usually be revoked at any time by the person who granted it. All that needs to be done is to tell the "attorney-in-fact" that the power has been revoked. It would be a good idea to get the document that mentions the POA either amended, returned, or destroyed as well. An exception to this could be if you grant an "irrevocable" power of attorney. This means that the POA cannot be revoked.
Laws regarding powers of attorney, living wills, and health care directives vary from state to state. An attorney experienced in trusts and estates law or elder law can help you come up with a document that clearly expresses your decisions for situations in which you can speak for yourself.