Q: My daughter has power of attorney for me. Do I need to...

Coping/Mortal Matters

June 10, 1991|By Sara Engram | Sara Engram,Universal Press Syndicate

Q: My daughter has power of attorney for me. Do I need to obtain forms for a living will? Isn't it possible I can write a living will requesting no life-prolonging treatments and give her this information to keep for me until the time is right? -- E.W., Salisbury, Md.

A: Both the durable power of attorney in health care matters and the living will are examples of "advance directives" -- documents that enable you to retain some control over the kinds of decisions made about your medical care in the event that you become unable to make decisions yourself.

Ideally, you would want to have both forms of protection. But even though they can accomplish the same goal, there are some important differences between the two kinds of documents.

First, however, it's important for you to be clear about the kind of legal power your daughter already has. You need to make sure she has not just a "power of attorney," but a "durable power of attorney for health care matters," a provision that ensures that her legal power will still be in effect even if you become unable to make decisions yourself.

A growing number of states, including Maryland, now recognize a durable power of attorney for health care matters. However, there is a generally accepted consensus in the legal community that even without the health care designation a durable power of attorney can be tailored to include medical decisions as well.

Given the choice between a living will and a durable power of attorney for health care, many experts prefer the latter, simply because it can cover more situations. Unlike a piece of paper, a person can talk things through with doctors, arguing back if necessary.

But a durable power of attorney may not meet everybody's needs. For instance, many people simply don't have anyone they would want to entrust with this responsibility. Even if you do, there is no guarantee that this person will outlive you. Moreover, some people don't want to give that kind of responsibility to someone else, and they may see the living will, which is a statement of their concerns and wishes, as a better way of retaining control over their own medical care.

In your case, there's no reason not to have both forms of protection. Your best bet may be to make sure your daughter has durable power of attorney for health care matters and then to put in writing your wishes as to what kinds of decisions you would want her to make if you became medically incompetent. The statement should be signed, dated and witnessed, and you should give copies to your daughter and other relatives and to your doctors.

You should also discuss your wishes with your family. In my view, if you grant a person -- family member, friend or acquaintance -- the legal power that could entail making life-or-death decisions on your behalf, you also owe him or her a frank discussion of your feelings about these matters. Otherwise, you are placing an unfair burden of responsibility on this person.

Do you need a lawyer? Not for a living will, although you should make sure you have a form that fits your state's requirements. And in the 30 or so states that provide for a durable power of attorney in health care matters, you will also be able to draw up a proper document without a lawyer -- although it is important that you obtain a proper form. In other states, a lawyer's advice may be needed to adapt a regular durable power of attorney to cover health care matters.

A reliable resource for information about the laws and legal precedents in each state is the Society for the Right to Die, 250 W. 57th St., New York, N.Y. 10107. For a membership fee of $15, the society will send you copies of documents suitable for your state and -- equally important -- keep you informed of any changes in laws and guidelines that may affect you.

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