Do You Need a Living Will and a PoA?

Advance care planning relies on two fundamental pieces of paperwork – a Living Will and a Power of Attorney (PoA). The Living Will provides details of a person’s wishes while the PoA nominates a person to follow out those wishes.

Most recommendations suggest you should have both documents, as they complement one another. But, is this actually true? Do you need a Living Will and a PoA? Couldn’t you just pick one of the two? Or even skip the paperwork entirely?

This article highlights general principles, but you may also wish to talk to an expert or a lawyer about if you’re concerned about your advance directives. Crucially, some combinations of circumstances can lead to different outcomes and there’s considerable variation in laws between states.

Why Create Advance Directives?

Your Living Will and PoA are designed to protect your healthcare wishes when you can’t make decisions for yourself. This includes long-term situations (like in late stage dementia or if you’re in a coma) and short-term ones (like being unconscious after an accident).  

Such paperwork isn’t always used in practice. After all, not everyone loses the ability to make decisions.

But, such losses can happen suddenly and you can’t predict the future. Which would you prefer? To have the paperwork and never need it, or to need it and not have it?

Advance care planning has another benefit too, it gets you thinking and talking about the future. This can be incredibly powerful for you and your family. Even if you don’t need the paperwork in the end, the conversations can make future healthcare decisions less stressful and overwhelming.

Implications of No Paperwork

If you lose decision making capacity without any paperwork, a decision maker will be appointed for you. This will typically be based on the priorities in your state.

For example, in Arizona, the list goes like this:

1. Spouse (unless patient and spouse are legally separated)
2. Adult child. If there’s more than one, healthcare providers will look for majority consent from the adult children.
3. Parent
4. Domestic partner
5. Sibling
6. Close friend

Sometimes a guardian may be appointed instead, especially if there is no one suitable within the priority list.

The person making decisions should still be focusing on your wishes and values, but they don’t have a Living Will to guide them. You mightn’t have even talked to this person about your wishes, making their role even more difficult.

If the decision maker doesn’t know what you would want, they should focus on what’s in your best interests. This could be very different than the type of care you actually want.

Implications of Just a Living Will

Just having a Living Will solves some of the problem. With this, your decision maker has a guide for your wishes. Even someone who doesn’t know you at all will have a decent idea of your matters to you.

Still… conversations about your wishes are just as important as the recorded Living Will. If you don’t have a PoA, you might not be having those conversations with the right person.

Conversations are crucial because your Living Will can’t ever cover everything. It’s a static and fairly straightforward document that tries to explain a complex and ever-changing situation. A decision maker is essential for interpreting the Living Will and applying it to real life situations.

Not having a PoA could lead to increased conflict as well – particularly among adult children, who may not agree on who should be the decision maker.

Why skip the PoA anyway? It’s a straightforward piece of paperwork that gives you much more predictability.

You’re going to have a decision maker no matter what. It might as well be someone you choose.

Besides, your Living Will has considerable legal weight. Your healthcare proxy can’t just ignore it because they want to.

Implications of Just a PoA

What if you just have a PoA instead? There are actually some merits to this idea.

Why You Might Skip the Living Will

You’re Saving Time and Energy

Power of Attorney paperwork is pretty straightforward. You’re naming your desired proxy and a backup person, plus making some basic decisions about their authority.

That’s it.

This is incredibly helpful for people who are already quite sick and just need something in place.

A Living Will isn’t even that helpful in every situation. For example, if someone is nearing the end of life and their wishes are well-known by everyone around them, a Living Will would provide few benefits. It may be much better to simply name a healthcare proxy, so they can step in when needed.

An intermediate option is Five Wishes. This combines a Living Will and PoA, using easy-to-understand language. It’s much faster than traditional Living Wills, while still offering plenty of protection.

There’s More Flexibility

Living Wills typically have more legal authority than healthcare proxies. This helps protect your wishes, but can sometimes create issues.

Crucially, healthcare is complex and people’s wishes can change over time. Sometimes it’s just not helpful to have a static document that everyone is forced to follow. It may be better to record your wishes in a non-legal document, where your proxy can use them just as a guide.

This approach works best when you’ve had many conversations with your proxy and with healthcare staff. These conversations help ensure plenty of understanding and trust, making the whole process smoother.

There may be additional options for flexibility, so it’s worth talking to an expert in your state. For example, you may be able to add a note in your PoA or Living Will that allows your Living Will to be used as a guide, rather than something to be followed strictly.

Problems with No Living Will

In situations like those above, just having a PoA could be enough. However, there are many more cases where not having a Living Will can cause serious issues.

The Potential for More Stress and Conflict

Your healthcare proxy may need to make many decisions on your behalf. Some of these will be straightforward, while others could be much more complicated.

There’s often a worry about whether you’re making the right decision. Are you truly following your loved one’s wishes? 

Having a Living Will doesn’t remove all the stress, but it certainly helps. Without one, proxies are likely to feel more uncertain and could struggle with some decisions. 

No Living Will can raise the risk of family conflict too. 

This is particularly common when siblings are arguing about how to care for an aging parent, although it can also happen in other situations. 

When there’s a Living Will, the proxy can prove that they’re following the principal’s wishes. Without a Living Will, there’s more space for debate and arguments. Family members might even try to make a case against the proxy.

And honestly, being a healthcare proxy is hard enough. Why make the role more difficult? 

Alternative Proxies Have Nothing to Guide Them

Let’s say you have complete confidence in your proxy. You’re confident they’ll remember your wishes or perhaps that they’ll always make the right decision. 

In that case, the Living Will is redundant, isn’t it?

The short answer is no because you can’t guarantee that your dominated proxy will actually fulfill the role. Perhaps they are in poor health themselves when the time comes or have moved to another country. That leaves the role to the backup, who may not know you as well. 

And, of course, there are no guarantees on the backup either. You could end up with an appointed surrogate or even a guardian. Such people will need a Living Will to guide to highlight your wishes.

There’s Less to Protect the Proxy

When the healthcare proxy is following a Living Will, they can use details in the Living Will to support their decisions. It becomes a way to prove that they are truly following your wishes. 

This is powerful if there’s any conflict or legal action. 

Without a Living Will, the proxy will need to work much harder to prove they’re doing their job correctly.

Your Wishes Aren’t Legally Protected

Healthcare proxies are expected to follow the Living Will, except in highly specific situations (like when the Living Will doesn’t address the current decision). Some states give proxies flexibility, while others are stricter and force the proxy to stick closely to the Living Will. 

These requirements mean your proxy can’t simply follow their own instincts.

If you don’t have a Living Will, then you need to trust that your proxy will remember and follow your wishes. Yet, this isn’t something you can guarantee. No one really knows what will happen and how they’ll cope when a loved one dies. Some proxies may actually do the role very poorly or even go against their previous promises. 

Final Thoughts

Most of the time, creating a PoA and a Living Will makes sense. The two documents work well together and protect your interests in a way neither can on their own.

There are two main exceptions: If you want your proxy to have more flexibility or if you’re near the end of life and want to save time. In such cases, you could possibly skip the Living Will without serious issues. Even here, it’s worth talking to an expert to see if doing so is wise.