• Estate Planning Article Series - Power of Attorney for Health Care and Living Will
  • March 10, 2010 | Author: Mark W. Jordan
  • Law Firm: Drew Law Firm Co., The, A Legal Professional Association - Cincinnati Office
  •  Power of Attorney for Health Care and Living Will


    Q:  Why are the Power of Attorney for Health Care and Living Will useful in estate planning?


    A:  These important documents enable you to designate your representatives to carry out your wishes concerning medical issues when you are unable to communicate. 


    Q:  Is there a difference between the Durable Power of Attorney and the Power of Attorney for Health Care?


    A:   Yes.  Unlike the Durable Power of Attorney (discussed in the last article), which deals only with financial matters, the Power of Attorney for Health Care concerns only medical matters such as your health, medical procedures, and medical paperwork such as files from your doctors, hospital, and insurance company.


    Q:  What is the difference between the Living Will and the Power of Attorney for Health Care?


    A:   While neither document takes effect until you are unable to communicate, the Living Will expresses your intent about the removal of life support, nutrition and hydration, but the Power of Attorney for Health Care designates your representative to make decisions covering all other medical situations. 


    Many states combine these two documents into one (for example, Kentucky has the Living Will Directive), but Ohio has two separate and equally important documents.  

    Q:  When do the Living Will and Power of Attorney for Health Care become effective?


    A:  First, you must sign each document in the  presence of a notary public or two witnesses who are adults and not related to you by blood, marriage, or adoption, and also who are not your attending  physician or the administrator of a nursing home in which you are a resident.  The Living Will only takes effect if you are in a permanent coma or are terminally ill and unable to communicate your decision to remove life support.  On the other hand, the Power of Attorney for Health Care is applicable if you are temporarily incapacitated and not able to communicate your wishes concerning any medical issues.  When you have both the Living Will and the Power of Attorney for Health Care, the Living Will takes precedence. 


    Life sustaining treatment will not be eliminated in the state of Ohio unless two doctors have determined you have an irreversible, incurable, and untreatable condition from which there can be no recovery, and death is likely to occur within a relatively short time, or you are permanently unconscious, irreversibly unaware of your environment, and there is total loss of cerebral cortical functioning, resulting in your having no capacity to experience pain or suffering. 

    The early stages of estate planning are critical. If you would like to arrange an initial consultation, please contact our Cincinnati office. Our lawyers will work with you to define your goals, identify significant aspects of your unique situation, and explain your alternatives.

    Our estate planning attorneys: Michael D. McNeil, James H. Coogan, Frederic L. Goeddel, Anthony G. Covatta, Robert M. Smyth, Mark W. Jordan, Nancy J. Frazier, Sybil B. Mullin and George J. Zamary.

    Related practice areas: estate planning, probate and estate administration, probate litigation, charitable trusts and foundations, business succession planning, gift and estate taxation, prenuptial agreements, division of marital assets, family law, real estate, employment law, mergers and acquisitions, and medical group representation