David T. Laton, Attorney at Law
Leading clients through estate planning and probate in Dayton, Ohio

Living Will and Health Care Power of Attorney – Basics

Despite their common names, Living Wills and Wills are very dissimilar. A Will provides instructions to your executor as to how you want your property and assets to be divided after your death. A Living Will pertains exclusively to health care decisions while you are still alive. In Ohio, to make a Living Will binding (executing the document), it must be made by an adult of at least 18 years of age, of sound mind who is competent and able to make health care decisions for themselves, signed and dated by the person creating the document, and either notarized or signed by two witnesses.

A Living Will is a legally binding directive that informs your physician how to administer care if you become incapable of making health care decisions for yourself. A Living Will becomes effective in Ohio if you enter a permanently unconscious state. Living Wills direct health care providers on the specific topic of artificially or technologically provided nutrition and hydration. You can direct your physician to withhold such life support measures, or to withdraw them if such measures have already been implemented before your Living Will was received.

If you have a Living Will created for you, you can revoke it at any time, and have a new Living Will created to override the old one. Ohio physicians will be bound by a Living Will drafted in another state, so long as that Living Will complies with Ohio law.

Health Care Power of Attorney - Basics

Health Care Power of Attorney (HPOA) allows you to grant authority to an Agent, who will make health care decisions for you in the event you become unable to make decisions for yourself. Unlike a Living Will, however, the bar for when your HPOA kicks in is much lower than the Living Will. For the HPOA to become effective, you can still be conscious, but your mental abilities are such that you are unable to make informed decisions that are best for your health care needs. For a Living Will to become effective, you must be in a permanently unconscious state.

Another important difference; HPOA is a grant of authority to an Agent. The Agent makes decisions for your ongoing care on a variety of issues such as

  • Types of treatment you receive
  • Admitting you to hospitals
  • Deciding which physicians you should see
  • Access to medical records

Whereas with a Living Will, you are not granting authority to anyone - you are directing your physician to follow specific instructions in the event you enter a permanently unconscious state.

Living Will, Health Care Power of Attorney, or Both?

There is no harm in executing both documents, as they often complement each other and can work in tandem to ensure comprehensive end-of-life care. The HPOA provides for your needs if you lose the ability to make informed health care decisions and remain conscious, while the Living Will removes risk and uncertainty if you enter a permanently unconscious state. If there are any discrepancies between the two documents, the Living Will has a higher priority than the HPOA, and any conflicts are resolved to favor the Living Will.

Contact David Laton

David's office is located in Dayton, Ohio, and he represents clients throughout Montgomery County and Greene County. Schedule a consultation with David today by calling 937-949-1104. You can also send an email.

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