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  • Writer's pictureJerrika Walker

Living Wills & Healthcare: Power of Attorney

Updated: Sep 28, 2021

If you've ever had surgery, you are familiar with being asked if you have a living will or a power of attorney. Most of us don't think about what would happen if we were physically or mentally incapacitated and unable to make decisions about our medical care due to illness, accident or advanced age.

If you don't plan now, these important decisions could wind up in the hands of a family member, a doctor, or even a judge who doesn't share your same views doesn't even know you or isn't someone you wish to have control of your care.

Types of Healthcare Documents

There are two basic documents that allow you to set out your wishes for medical care: a living will and a durable power of attorney for health care. We suggest you do both. When these documents are combined, it's often called an advance directive. Both of these documents let you specify your wishes for healthcare in the event you cannot speak for yourself.

Living Wills

So, what is a #livingwill? The first thing is to get a written statement that details the type of care you want or don't want if you become incapacitated. A living will isn't the same as a will or living trust, which is used to leave the property at death. A living will is strictly created to spell our your healthcare preferences.

Powers of Attorney for Health Care

The second document is a #powerofattorney which is when you appoint someone you trust to be your healthcare advocate to make the necessary healthcare decisions for you. They will also see to it that doctors and healthcare providers give you the type of care you wish to receive.

Who Can Make Health Care Documents

You must legally be an adult to make a valid document directing your health care. And, you must also be of sound mind -- that is, able to understand what the document means, what it contains, and how it works.

When Your Health Care Documents Take Effect

When your doctor determines that you lack the ability or capacity to make your healthcare decisions that's when these documents go into effect. This often happens when: You can't understand the consequences of health care choices available to you You are unable to communicate your wishes for care, either orally, in writing, or through gestures.

Bottom line, you can't express your healthcare wishes in any shape or form. One important thing to mention is that giving someone else the authority to make your health care decisions does not give them the right to override or changes your wishes. Your health care agent must always act in your best interests and diligently try to follow your wishes.

When Your Health Care Documents End

Your written wishes for your healthcare stay in effect as long as you are living or unless you explicitly revoke them. You can change or cancel a healthcare document at any time. Don't forget to alert your health care agent.

Your written wishes for health care remain valid as long as you are alive unless you explicitly revoke your documents or court steps in (but court involvement is very rare). Here are a few specifics about when your health care documents are no longer active:

  • You revoke your document. You can change or cancel your healthcare document at any time. Just make sure your healthcare providers and your agent know of your intention to cancel the document.

  • A court validates your document. Most judges recognize that a court is normally not the right place to make healthcare decisions. However, if your healthcare is in dispute and someone questions the validity of your healthcare directives, the matter may end up in court.

  • If someone doubts that you have the mental capacity to prepare a legally valid document, that person may have the court to invalidate the document. Such lawsuits are rare, but the can occur. The burden of proving the validity of the document falls on the person who is questioning it.

  • Your document can be invalidated if it was not properly completed.

  • A court can revoke your agent's authority. If someone believes your healthcare agent isn't adhering to your wishes or is acting improperly, a court could rule that the role goes to an alternative agent. If there is no one available, the court could appoint a conservator or guardian to make the healthcare decisions for you.

  • You get a divorce. Getting a divorce has no effect on your written directions for healthcare. But if you named your spouse as your health care agent, his or her authority is automatically revoked in some states. In that case, if you named the second agent, that person would then take over.

  • After your death. Your healthcare documents are no longer necessary when you die. However, in some states, your healthcare directives remain in effect after your death for limited purposes. Your agent may be permitted to supervise the disposition of your body, including authorizing an autopsy or organ donation, unless you expressly withheld these powers when you made your healthcare documents.

If you have any additional questions about establishing a living will or seeking the power of attorney, please contact the JK Walker Law Firm at (256) 258-9269 or

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