Legal terminology can sometimes seem confusing, even misleading, to the layman. The names of some legal documents can suggest one meaning while actually operating as something else. Within estate planning law, for example, living wills and powers of attorney are two well-known but often misunderstood staples.
A living will is not actually a will at all. Instead, it is a document that allows a person to make known his or her wishes concerning life-prolonging medical treatments. Living wills are also known by a less misleading, though more formal, name: advance directives.
In general, through a living will, declarants specify what medical treatments they do not want applied to them in the event that they face a terminal illness or are in a permanent vegetative state. Living wills only become effective if the declarant’s chances for recovery are very slim.
A living will is most applicable when the declarant’s chances for recovery are near-hopeless. By contrast, a power of attorney would meet the needs of someone who is incapacitated, but whose health is not so dire that a living will would kick into force.
In the case of incapacitation, the grantor of powers of attorney chooses a trusted person who will be called upon to handle two key matters for them: necessary medical care decisions in the case of a medical power of attorney and necessary financial decisions in the case of a financial power of attorney. The grantee is not actually or usually an attorney, and he or she will not be expected to act as a lawyer. Powers of attorney can be durable, which stay in effect as long as the grantor is unable to handle matters on his or her own, or ordinary, which end if the grantor loses mental capacity.
The requirements for living wills and powers of attorney vary from state to state. An experienced estate-planning lawyer can help a person prepare valid and effective living wills or powers of attorney.