Difference Between Living Will and Durable Power of Attorney

By Jeffry Olson, J.D.

Difference Between Living Will and Durable Power of Attorney

By Jeffry Olson, J.D.

It's common to confuse a living will and a durable power of attorney. Although the documents may come into play during similar circumstances, they have different purposes. In short, a living will presents decisions you've made ahead of time regarding your own end-of-life health care, and a power of attorney names the person who can make financial or health care decisions for you.

Older couple using laptop

Living Will

A living will, also known as a health care directive, allows people to state their wishes for end-of-life medical care. The term is somewhat misleading because a will typically only takes effect on the death of the individual. However, living wills take effect when the individual is alive but incapacitated and unable to express their wishes. A living will has no legal impact after death.

Without a living will, doctors and family members have no clear understanding of the wishes of the incapacitated person. Family members must guess and might disagree. When others substitute their judgment, they are often unable to make a conjecture as to what the incapacitated person would want and instead rely on their own opinions and personal wishes.

In extreme cases, disputes over end-of-life health care end up in court, as courts can step in when family members do not agree. Drafting a living will can prevent legal disputes among your family members and allow them to give their full attention to the issues at hand.

Durable Power of Attorney in Financial Situations

A durable power of attorney for finances allows someone else to make financial decisions on your behalf if you are unable to make decisions for yourself.

The financial durable power of attorney makes many financial decisions, including:

  • Paying bills, including taxes
  • Managing financial accounts
  • Managing real estate assets
  • Making investment decisions
  • Collecting appropriate retirement benefits
  • Operating any businesses
  • Transferring and selling assets

Your financial durable power of attorney acts as your agent and must always take action in your best interests.

Durable Power of Attorney for Health Care

A durable power of attorney for health care allows you to name someone to make health care decisions on your behalf. This person would follow any directives you have provided for end-of-life health care after your incapacitation. The durable power of attorney for health care only takes effect when you are unable to make decisions for yourself. Further, it has no effect upon your death.

Even when you have not stated your wishes for end-of-life care, a durable power of attorney for health care allows you to name the individual who will make those decisions. It also limits disputes among family members. One or more family members may have different opinions about your end-of-life health care, but the individual named as your durable power of attorney for health care has the ultimate say.

Drafting Documents for Your End-of-Life Care

A living will, a durable power of attorney for finances, and a durable power of attorney for health care typically appear as three separate documents. Having all three ensures the meeting of your health and financial needs in the event of your incapacitation. These documents establish who should make decisions and provide them guidance on how you would like those decisions made.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.