Living Will and Health Care Power of Attorney

Living Will and Health Care Power of Attorney

Although most people agree that planning for the future of their health care is a wise thing to do, still more than half Americans are not taking the necessary steps to secure the documents needed to protect their choices. We’ve all heard stories on the news about people whose family members were divided over the decision of whether or not to end life support and yet most adults still avoid thinking about and planning their end of life decisions.

When a loved one is no longer able to make their own health care decisions, family members are left to deal with making decisions while under extreme emotional stress. If the family member who is ill or injured has not made their wishes known to their next of kin, it is possible for there to be no guidance for the person left to make these decisions. It might also be that there is a conflict within the family about the best course of action or who should make those decisions.

Preparing legal documents that address what you want to happen in case you are unable to make these decisions yourself relieves your family of the burden of making decisions that would be difficult at best and at worst, would be decisions that are the opposite of what you want.

There are legal documents you can fill out that will express your wishes about health care in case you are unable to let others know those decisions after falling ill or being injured. These documents can give guidance to doctors, hospitals and loved ones. You can also appoint a person who will be your agent to make decisions for you.


Living Will

The living will is also referred to as an advance directive. As medical technology advanced through the second half of the 20th century, families faced difficult medical decisions in the face of serious illness and incapacity. The concept of the living will first appeared in the late 1960’s. In 1976, California became the first state to legally recognize the living will.

Under federal law, all patients entering any hospital have the right to choose and to refuse medical care. Sometimes, however, though we may legally be entitled to certain rights, these rights are overlooked if we do not take steps to take advantage of these rights.

The Arizona Attorney General’s Office describes the living will as follows.

“A Living Will is a written statement that expresses your wishes about medical treatment that would delay death from a terminal condition. It also applies to situations of persistent vegetative state or irreversible coma. A Living Will would speak for you in the event that you were unable to communicate. It gives direction and guidance to others.”

An Arizona living will can either exist by itself or as part of a health care power of attorney. It specifies those end-of-life actions a person would and would not like taken on his/her behalf. The situations and actions listed in a living will may range from very general to very specific.

You can address a number of possible end-of-life care decisions in your living will. Here are some common considerations when making a living will:

– Resuscitation restarts the heart when it has stopped beating. You can decide if and when you would want to be resuscitated by cardiopulmonary resuscitation (CPR) or by a device that delivers an electric shock to stimulate the heart.

– Mechanical ventilation takes over your breathing if you’re unable to do so. Consider if, when and for how long you would want to be placed on a mechanical ventilator.

– Tube feeding supplies the body with nutrients and fluids intravenously or via a tube in the stomach. You can decide if, when and for how long you would want to be fed in this manner.

– Dialysis removes waste from your blood and manages fluid levels if your kidneys no longer function. You can choose if, when and for how long you would want to receive this treatment.

– Antibiotics or antiviral medications can be used to treat many infections. If you were near the end of life, would you want infections to be treated aggressively or would you rather let infections run their course? You can choose.

– Comfort care (palliative care) includes any number of interventions that may be used to keep you comfortable and manage pain, while abiding by your other treatment wishes. This may include being allowed to die at home, getting pain medications, being fed ice chips to soothe dryness, and avoiding invasive tests or treatments.

– Organ and tissue donations for transplantation can be specified in your living will. If your organs are removed for donation, you will be kept on life-sustaining treatment temporarily until the procedure is complete. To help your agent avoid any confusion, you may state in your living will that you understand the need for this temporary intervention.

– Donating your body for scientific study also can be specified.

If a living will is part of a health care power of attorney, it need only be in writing and need not comply with additional execution formalities. If it is not part of a health care power of attorney, however, its execution must satisfy the same execution requirements as a health care power of attorney. ARS § 36-3261.

 Power of Attorney

Power of attorney is given to a person who then has the legal authority to make decisions for another person. The person granted the power of attorney is called the “attorney-in-fact” or “agent.” The person giving over the power of attorney is called the “principal.” The attorney-in-fact or agent is responsible for determining the scope of the decisions they should be making.

In order to grant someone power of attorney to act on your behalf you must be 18 years old and of sound mind. Of sound mind means that the person signing the power of attorney CAN NOT already be incapacitated.  If the principal is already incapacitated the power to act on the incapacitated person’s behalf must be granted by a court of competent jurisdiction in either a Guardianship or Conservatorship action. AZ Statewide Paralegal prepares both guardianship and conservatorship documents as well.

Most often this person is incapacitated or for some reason unable to make decisions or carry out legal responsibilities for a period of time. The power of attorney can be general or specific. This means that the person granted the power of attorney can handle only one issue (such as the real estate power of attorney discussed below) or can make decisions about any personal or financial or health care issues.

 Health Care Power of Attorney

The health care power of attorney is a legal document that lets you choose an agent who will make health care decisions if you can no longer make those decisions for yourself. The person you name may be a spouse, other family member, friend or member of a faith community. You may also choose one or more alternates in case the person you chose is unable to fulfill his or her role.

You have the option to set specific limits on the types of decisions your agent can make or you can give the person broad authority to make any health care decisions you would normally make for yourself. For example, your agent could make decisions about whether or not to continue tube feeding.

According to Arizona Revised Statute 36-3221, a health care power of attorney must be: 1) written, 2) dated, 3) signed, and 4) notarized or witnessed by at least one adult who affirms that the notary or witness was present when the person dated and signed or marked the health care power of attorney and that the person appeared to be of sound mind and free from duress at the time of execution of the health care power of attorney.

The notary or witness shall not be any of the following: 1) A person designated to make medical decisions on the principal’s behalf, 2) A person directly involved with the provision of health care to the principal at the time the health care power of attorney is executed. If a health care power of attorney is witnessed by only one person, that person may not be related to the principal by blood, marriage or adoption and may not be entitled to any part of the principal’s estate by will or by operation of law at the time that the power of attorney is executed.

Many people wonder about the difference between the living will and the health care power of attorney. While the living will speaks for you if you are not able to communicate, according to the Arizona Attorney General’s Office a living will “…is not as broadly applicable as a Durable Health Care Power of Attorney. For example, a Living Will does not permit health care providers to stop tube feeding – only an agent appointed by a Durable Health Care Power of Attorney or a court-appointed guardian may make such a decision.”

If you have both a living will and a health care power of attorney, the Arizona Attorney General’s Office states that you should attach your living will to your health care power of attorney.


Durable Power of Attorney

Another document that many people also create to deal with possible incapacity is a A Durable Power of Attorney. A Durable Power of Attorney gives an agent, that you name, the authority to conduct any financial transactions on your behalf if you become seriously ill or incapacitated. You appoint an agent and an alternate agent to handle all of your financial affairs should you become incapacitated. When determining your incapacity you may give your agents permission to obtain your health and medical records with this document.

By giving your agent power of attorney they are allowed to make any decisions that you would make. Because you are giving that person legal decision-making authority for your financial affairs if you become incapacitated, it is important that you choose someone that you trust and who understands what choices you would want made.

The durable power of attorney only goes into effect if you become disabled or incapacitated. As opposed to a general power of attorney, which starts and ends on a specific date (or ends upon the death of the principal), a durable power of attorney has no specified end date – it ends only upon the death of the principal or upon revocation.


Electronic Advance Directive Registry

Arizona also has an electronic advance directive registry. This registry allows you to electronically store your legal medical documents so that they are available on-line 24-7. The process for registering your advance directive documents starts with filling out the registration application. You submit copies of your documents by mail. You then receive a form confirming the information. You complete that form and send it back. Once confirmation is received by the Arizona Secretary of State, your registration is activated.

You will have a wallet card with your file number and password that you can keep with you so that any hospital or doctor can get electronic access to your advance directives. The Secretary of State’s Office recommends that you share this information not only with your medical care team, but also with the person named as an agent in your health care power of attorney.


As certified legal document preparers with decades of experience preparing documents for divorce, annulment and separation as well as estate planning and legal health documents, the staff at Arizona Statewide Paralegal make the process as simple and efficient as possible. You can even start your living will, health care power of attorney, and durable power of attorney on-line. Once you’ve completed the forms, we prepare the documents and you choose how you want the documents delivered to you. We have the option to e-mail, mail, or provide in-office signing of the documents. We have four locations throughout the Tucson and Phoenix metro areas. It is never too early to begin making decisions about your health care in the case of a serious illness or accident. As long as you are 18 years of age, you can indicate your health care wishes in a living will and designate an agent should you not be able to make health care decisions. Contact us today to start the process.




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