Living Will and Durable Power of Attorney: Frequently Asked Questions

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Have you thought about what happens if you are incapacitated in some way and can’t make health care decisions for yourself? Who will make the decisions? What decisions will they make? A living will can go a long way to put your mind at peace.

What Is a Living Will?

A living will is a legal document in which you state your wishes about certain kinds of medical treatments and life-prolonging procedures you wish to receive. The document takes effect if you can’t communicate your own healthcare decisions. A living will may also be called a healthcare directive, advance directive or directive to physicians.

How Do I Obtain a Living Will? 

Obtaining the appropriate living will form is easy, and you don’t have to pay the $30 or more some lawyers charge. The forms themselves are contained in the state statute authorizing the creation of a living will. In some cases, you can also obtain the form for use in your state from a doctor, hospital or medical clinic.

You can also visit the CaringInfo website to download the advance directives free of charge.

How Do I Enact a Living Will? 

This document must be signed by you in the presence of two or more witnesses, none of whom should be a health care provider or a person who would stand to receive a share of your property in the event of your death, such as your spouse, a child, or someone you named as a beneficiary of a life insurance policy.

What If I Move? 

The exact form for creating a living will varies from state to state, and while it’s likely that a living will executed in one state would be honored in another, most experts recommend that you execute a new living will if you move permanently from one state to another.

What Is a Durable Power of Attorney for Asset Management (DPOA)?

A Durable Power of Attorney (DPOA) is a document that allows you (the principal) to give authority to another person (your agent or attorney-in-fact) to make financial/legal decisions and to make financial transactions on your behalf. A ‘Durable Power’ differs from a ‘general’ power of attorney because it remains effective even if the principal is mentally incompetent.

Who Can Execute a Durable Power of Attorney? 

A person must be competent in order to execute a valid DPOA. If there is a question regarding competency, it is a good idea to get a doctor’s letter or declaration regarding the competency of the principal at the time the document is executed.

Who Can Serve As Attorney-in-Fact? 

Any trusted person, such as a spouse, relative or friend, can serve as attorney-in-fact; it need not be an attorney. Also, there are several non-profit agencies that will fill this role. It is always a good idea to name at least one alternate attorney-in-fact to serve in the event that the first choice becomes disabled or dies. Your attorney-in-fact will have broad authority and it is critical that the person that you chose to serve in this capacity be completely trustworthy and sensitive to your wishes.

What Powers Can I Give to My Attorney-in-Fact? 

You can give your attorney-in-fact as limited or as broad powers as you desire, including the powers to buy property, to invest, to contract, to engage in tax planning, to make gifts, and, very importantly, the power to plan for government benefits, such as SSI.


What Are the Disadvantages of a Durable Power of Attorney? 

The main disadvantage of a DPOA is that it is subject to abuse because there is no ongoing court supervision of the attorney-in-fact. Unlike conservatorships, where an accounting is required to be submitted to the court, the attorney-in-fact’s actions are not being supervised on an ongoing basis. If the attorney-in-fact abuses his or her authority and acts improperly, a court can step in and take action. However, in many cases, the damage is already done and it is difficult to undo it. Thus, great care should be taken in selecting your attorney-in-fact.

Do I Need a Lawyer To Have a Durable Power of Attorney Drafted? 

There are advantages to having a lawyer draft a DPOA. First, an attorney-drafted DPOA can be drafted to meet your individual needs. Although there are pre-printed forms available, they are worded broadly and do not give you as much flexibility. Second, since DPOAs are subject to abuse, it is a good idea to meet with an attorney to make sure both the principal and attorney-in-fact understand the document and the attorney is assured of the principal’s competency.

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