A living will is the expression of what your wishes are if you’re in a situation that is irreversible, like a coma that’s irreversible. A medical power of attorney, also called a health care power of attorney, appoints an agent to make decisions if you’re unable to, based on what you put into the document.
If you’re looking into a living will in Ohio, you’ll also hear the term power of attorney. The power of attorney names the person who makes your decisions. The living will says what you want to do in that situation.
What a living will does
A living will is the expression of what your wishes are if you’re in some situation that is irreversible. For example, you’re in a coma that’s irreversible. What do you want to happen? The living will states what you want to do in that situation.
We like to group estate planning documents into two categories: documents that work during life and documents that work after death. The living will is a during-life document, along with the medical power of attorney, financial powers of attorney, minor children instructions, and pet directives. Those are all things you can take care of while you’re alive.
Your last will and testament is an after-death document. A trust is the bridge that bridges life to death. You can learn more about this on our resources page.
Living will vs. medical or health care power of attorney
A medical power of attorney and a health care power of attorney are the same document. Depending on the state, it may go by either name. It appoints an agent to make medical decisions if you’re unable to. The living will says what you want to do in a situation that is irreversible.
| Medical power of attorney | Living will | |
| What it does | Appoints an agent to make decisions if you’re unable to | Expresses what your wishes are if you’re in a situation that is irreversible |
| In short | Names the person who makes your decisions | Says what you want to do in that situation |
| When it applies | When you’re unable to make decisions | When you’re in a situation that is irreversible, like a coma that’s irreversible |
| What goes in it | Your agent’s legal name, address, and telephone number, and the decisions you’d want to make | Your wishes for that situation |
| When it works | During life | During life |
Your agent makes decisions based on what you put into the medical power of attorney. You let them know the decisions you’d want to make.
Organ donation can be in your medical power of attorney. It’s also in your disposition instructions, which cover what you want done with your body after you pass away and who you want to be in charge of doing that.
Similar to the medical power of attorney, you have a financial power of attorney. That’s an agent for everything that’s not your health care information, someone who can do things on your behalf.
What a medical power of attorney is not
A medical power of attorney is not a do not resuscitate form or a physician’s order regarding life sustaining treatment (“POLST”). A do not resuscitate form or POLST are documents you do with your doctor, not with an attorney.
The medical power of attorney and the living will are part of your estate plan.
Choosing your agent
Your agent is the person your medical power of attorney appoints to make decisions if you’re unable to. The document needs your agent’s name, address, and telephone number, so your agent can be reached.
“I don’t know if I want that responsibility”
Your agent may say, “I don’t know if I want that responsibility.” It’s not their responsibility to know what you want, because you’re going to tell them what you want. That relieves stress.
Use your agent’s legal name
If your agent is your daughter and she goes by something other than her legal name, or a short form of her name, put her legal name in the document. That way, if she has to produce identification, it matches.
Your agent can live in another state
Your agent does not have to be a resident of the state you’re in. They don’t have to be the child who lives closer to you because they’re in the same state. That doesn’t have to be the deciding factor. Your agent can be anywhere in the country, as long as your agent can be reached and can make the decisions.
Why every adult over 18 needs some sort of plan
Anyone over 18 is an adult. A lot of people think: I don’t have anything, I don’t own anything, I don’t have a house, I don’t have any kids, so I don’t need a plan. If you are over 18, you are an adult, and you need some sort of estate plan.
You may not have a house. You still have a body. You still have to make decisions regarding that body.
Make decisions while you can
If you become incompetent, you don’t get to make decisions anymore. Doing your estate planning now means you make those decisions while you’re competent. We don’t know when you’re going to become incompetent, so it’s very important that you do it now, while you are.
Many people leave our office and say they feel so much better now that they have their estate planning documents in place. Everything is set up.
What happens if you don’t have powers of attorney
If you’re incapacitated without powers of attorney, whether for medical or financial decisions, you can end up in guardianship, and a guardian needs to be named.
If you already have your powers of attorney in place, you already know who you want to act. They step in and start handling your affairs, whether for medical or financial reasons, and you can avoid that court process.
One of the questions to consider when you’re doing estate planning: who’s going to handle your financial or medical decisions if you can’t? Make sure they follow what you put down.
Frequently asked questions
Is a medical power of attorney the same as a health care power of attorney?
Yes. They are the same document. Depending on the state, it may be called a medical power of attorney or a health care power of attorney. Either way, it appoints an agent to make decisions if you’re unable to, based on what you put into the document. A living will is different: it says what you want to do in a situation that is irreversible.
Does my agent have to live in the same state as me?
No. Your agent does not have to be a resident of the state you’re in. They don’t have to be the child who lives closer to you because they’re in the same state, and that doesn’t have to be the deciding factor. Your agent can be anywhere in the country, as long as your agent can be reached and can make the decisions.
Why does my medical power of attorney need my agent’s legal name?
If your agent has to produce identification, it would match the name in the document. So if your agent is your daughter and she goes by something other than her legal name, or a short form of her name, put her legal name in the document. The document also needs your agent’s address and telephone number, so your agent can be reached.
Is a medical power of attorney the same as a do not resuscitate form?
No. A medical power of attorney is not a do not resuscitate form. A do not resuscitate form is something you do with your doctor, not with an attorney. The medical power of attorney appoints an agent to make decisions if you’re unable to, based on what you put into the document.
What does my agent base decisions on?
Your agent makes decisions based on what you put into the medical power of attorney. You let them know the decisions you’d want to make. It’s not their responsibility to know what you want, because you’re going to tell them what you want. That relieves stress.
Where does organ donation go in my estate plan?
Organ donation is in your medical power of attorney. It’s also in your disposition instructions, which cover what you want done with your body after you pass away and who you want to be in charge of doing that.
What happens if I’m incapacitated and don’t have powers of attorney?
You can end up in guardianship, and a guardian needs to be named. If your powers of attorney are already in place, you already know who you want to act. They step in and start handling your affairs, whether for medical or financial reasons, and you can avoid that court process.
What to do next
- Who’s going to handle your medical or financial decisions if you can’t? Make sure they are going to follow your desires.
- Your medical power of attorney needs your agent’s legal name, address, and telephone number.
- Your agent doesn’t have to live in your state.
- A do not resuscitate order is something you do with your doctor.
If you are over 18, you need some sort of estate plan. If you have questions, give our office a call or contact us.
Whitney E. Short is the Short & Stevens Law attorney licensed to practice in Ohio.
