Advanced Directives: Living Wills and Powers of Attorney for Health Care

What is a living will?

A living will is a legal document which states your wishes about life-sustaining treatment if you become terminally ill or permanently unconscious.  It is different from a health care power of attorney. A living will:

  • only becomes effective if you can’t communicate your wishes and are permanently unconscious or terminally ill;
  • states whether you want life-support to be used;
  • gives doctors the authority to follow your instructions about medical treatment;
  • can be changed or revoked by you at any time;
  • cannot be changed or revoked by anyone else;
  • will be followed for a pregnant woman only if certain conditions apply; and
  • specifies under what conditions you would want artificial feeding and fluids to be withheld.

If my living will says I don't want to be hooked up to life-support, would I still get pain medication?

Yes. A living will only affects care that artificially postpones death. Medical care to ease pain and comfort care are never limited. This could include oxygen, pain medication and personal care, such as would be received in a hospice.

Can I specify that I don’t want CPR or other extraordinary measures?

Yes. The standard living will form allows you to direct your physician to write a DNR (do not resuscitate) order. Two doctors must have agreed that you are either terminally ill or permanently unconscious and that it is medically appropriate.

Can I have a document telling my doctor that I want all treatment to be continued using every available means to keep me alive?

Yes. Don’t use the standard forms. Talk with your attorney.

Who decides that I am dying or permanently unconscious without hope of recovery?

If you haven’t signed a living will, your family and doctors won’t know your wishes. Most likely medical treatment will continue even if there’s no hope of recovery. If you have signed a living will, two doctors who have examined you must agree that you are beyond any medical help and that you will not recover.

Who should have a living will?

Everyone. Disease and accidents can strike at any age.

Would my family be notified before doctors stop life-support treatments?

Doctors must make reasonable efforts to notify the person you named in your living will or a family member, before following your instructions to withdraw life-support. If the person notified feels your living will is not being properly followed, an immediate hearing can be scheduled in probate court. The court would decide if there is a legal reason why your instructions should not be followed. By law, no one can change or overrule your living will if it was freely and correctly executed.

Can I have a feeding or fluid tube removed?

Yes. If you want to allow your doctor to withhold artificial nutrition or hydration should you become permanently unconscious, you must state this in your living will. You do not need to give any special instructions to allow your doctor to withhold nutrition and hydration if you are in a terminal condition and these efforts do not provide comfort or pain relief.

If I don’t have a living will, can the person I name in my health care power of attorney make end-of-life decisions for me?

Yes. You need to state this in your health care power of attorney. A living will can spell out end-of-life instructions. Or you can give your agent in a health care power of attorney the power to make all health care decisions.

What is a health care power of attorney?

A health care power of attorney is a legal document that gives another person the right to make health care decisions for you if you cannot make them for yourself. It is sometimes called a "durable power of attorney for health care" or "DPOA." A  health care power of attorney

  • allows you to chose a person you trust to make health care decisions for you anytime you cannot make them yourself;
  • becomes effective only when you cannot make your own health care decisions;
  • requires the person you appoint to make decisions based on your wishes; and
  • requires the person you appoint to make decisions based on your living will if you have both documents.

Do I have to choose a family member as my health care power of attorney?

No. You can appoint any adult. It’s best to choose someone who is more likely to be available when you need them. However, you cannot appoint your doctor, your health care facility (nursing home or hospital) administrator or their employees.

Do I need both a living will and a health care power of attorney?

It’s best to have both. A living will only applies in limited end-of-life circumstances. A health care power of attorney covers all other times when you cannot make health care decisions for yourself.

What is a mental health declaration?

The standard health care power of attorney addresses both physical and mental health issues. In certain situations, it may be advisable to have a "declaration of mental health treatment" also.  For more information, see the Ohio Legal Rights Service website at Type "declaration of mental health treatment document" in the search box. 

My parent gave me a health care power of attorney before going into a nursing home. Can I act make decisions on her behalf? You can make decisions once your parent is no longer able to make them.

A health care power of attorney covers all aspects of medical treatment whenever a patient is unable to make their wishes known.

Can I use a health care power of attorney to take care of my parent’s financial matters?

No. A mentally competent adult can sign a power of attorney or durable power of attorney to allow you to help with financial affairs. If your parent didn’t sign a durable power of attorney and is not now mentally competent, you must to seek guardianship.

Where can I find the standard forms for a living will and health care power of attorney?

The forms are available from attorneys, your doctor and other organizations. Or mail a request with $3 to the Midwest Care Alliance, 855 South Wall Street, Columbus, OH 43206.

What do I do after I fill out these documents?

Make several copies. Give one to a trusted family member and the person named in the document. Keep one with your personal papers. Give copies to your doctor and your lawyer.

This article is meant to give you general information and not to give you specific legal advice.Prepared by Community Legal Aid Services, Inc. Updated May, 2012. CE-95-F266-CLAS