Healthcare Proxies vs. Living Wills

By Stephanie Kurose, J.D.

Healthcare Proxies vs. Living Wills

By Stephanie Kurose, J.D.

Being able to communicate with your healthcare professional about your medical care and treatment preferences is extremely important throughout your life, but it's especially important as you get older. One of the more popular tools for end-of-life care is an advance healthcare directive. An advance directive is a legal document that allows a person to dictate ahead of time what actions should be taken for their health if they are no longer able to communicate their wishes or make decisions for themselves. Living wills and healthcare proxies are types of advance healthcare directives.

Doctor talking to patient

What is a living will?

Not to be confused with a last will and testament, a living will is a document that allows a person to specify what type of future medical care and treatments they do or do not want should they ever become unable to communicate due to an illness or incapacity—usually when they are terminally ill. Types of treatments common to living wills are resuscitation, medical ventilator, and artificial nutrition.

State law governs living wills, so it is important to understand the specific laws of your state if you are thinking about creating a living will. It is also important to note that most states do not consider living wills as legally binding documents. Some states—such as Massachusetts—do not officially recognize living wills, while others—such as New York—may use a living will as a reference but do not make medical decisions based on it alone.

What are healthcare proxies?

A healthcare proxy, also known as a durable power of attorney for healthcare, is a document that allows a person to designate someone else to make medical decisions for them if they become incapacitated. Unlike a living will, where a person dictates their own wishes, a healthcare proxy gives authority to make medical decisions to another individual. Thus, it is important to communicate your wishes to the proxy about end-of-life decisions to help guide them when that time comes.

Also unlike living wills, medical doctors are bound to follow a healthcare proxy's decisions as if they were coming from the actual patient. Proxies become effective when a doctor determines that the patient is no longer able to communicate.

Which one is better?

One of the benefits of a healthcare proxy is that the proxy can make judgments based on the most current and up-to-date information, while an individual might create a living will years before it actually needs to take effect. Living wills are also oftentimes very narrow, so most of the time they do not apply to common treatments and procedures and may not address treatments that doctors consider necessary. However, they do allow a person to make their own decisions regarding important medical preferences.

Both living wills and healthcare proxies have their benefits and limitations. A person must decide based on their own specific situation which one they are more comfortable with creating. A person could also choose to have both, where the living will is able to guide the healthcare proxy's decisions.

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.