What’s the difference between a living will and power of attorney?

Don’t forget either of these two essential estate planning documents.

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a personal finance editor at Policygenius in New York City. She has researched and written extensively about finance and insurance since 2019, with an emphasis in estate planning and mortgages. Her writing has been cited by MarketWatch, CNBC, and Betterment.

Published May 25, 2021|4 min read

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A living will and power of attorney are both legal documents that can help plan for your end-of-life affairs, but they do so in different ways. A living will outlines your medical preferences, while powers of attorney can give someone you trust legal authority to make decisions on your behalf, including the ability to step in and make decisions that aren’t referenced in your living will. Additionally, powers of attorney can be medical, financial, and durable — which might confuse some people. We’ll explain the differences between POAs and living wills and why you might consider each when creating your estate plan

Key Takeaways

  • A living will lets you state your preferences for medical treatment

  • A medical power of attorney lets you choose a person to make your healthcare decisions

  • A durable power of attorney remains effective when you’re incapacitated

  • Powers of attorney cannot override living wills — the person you granted POA must try to follow your wishes

What is a living will

Not to be confused with a last will and testament, a living will doesn’t have to do with who receives your money and belongings. You make a living will to articulate your preferences for end-of-life medical care and life-sustaining treatment, like whether or not you want to be resuscitated in certain situations.

Only 24.7% of people had a living will in 2020 according to the Policygenius Estate Planning Survey, which means three-quarters of people are leaving their wishes unspoken and in the hands of family members who may be grieving and could disagree about the best course of action. 

A living will can let you decide the following:

  • When you should receive CPR or be resuscitated if your heart stops (including a DNR order)

  • How long you should be kept on a feeding tube or respirator

  • Whether or not you want to donate your organs

  • What types of pain medications you want or do not want to receive

  • If you’d prefer to receive care at home or in the hospital when you’re terminally ill

Learn more about these types of care and what to include in a living will

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What is a power of attorney?

A power of attorney is a short document that gives someone you trust the legal authority to make decisions on your behalf. There are a few different types of POAs, depending on what powers you grant this person, known as your agent, proxy, or attorney in-in-fact

Medical power of attorney 

A medical power of attorney is also known as a healthcare proxy, and it grants someone you trust the legal authority to make decisions on your behalf regarding your health. The agent has a fiduciary duty to act in your best interests, which means they should try to follow the instructions in a living will, if there is one, to guide their decisions. 

You can give your agent limited or broad powers as to what they can do, and you can also give them financial power of attorney — which lets them make financial and legal decisions on your behalf. You don’t have to nominate the same person to hold both responsibilities, but it can be helpful in the event that they need access to free up financial assets to pay for your medical treatment.

Durable power of attorney

When you’re including a power of attorney, whether it’s medical or financial, as part of your estate plan, it's important that you make sure it’s durable

A regular power of attorney doesn’t come into effect when you’re incapacitated, which means the person you appoint can’t act on your behalf if you’re in a coma. For example, only a durable health care power of attorney would let your agent make medical decisions in such situations. 

Powers of attorney and durable powers of attorney do not supersede a living will, unless you have explicitly given your agent the ability to override those documents.

Learn more about durable powers of attorney.

Which one do I need?

Almost everyone can benefit from including both a living will and durable power of attorney in their estate plan, since it’s possible for anyone to get sick or become mentally incapacitated and unable to make decisions for themselves. 

Having advance medical directives and POAs in place can also greatly help your family and loved ones during a difficult time; when they need to make a decision, everyone can rest assured knowing that your wishes and desires are being respected. In extreme situations when a person hasn’t done any planning, their family could end up in a court battle trying to figure out how to make a decision. To save legal expenses, time, and unnecessary disputes, you can plan ahead. If you don’t have strong preferences as to what types of medical care you want to receive, then you should at least create a POA and choose someone you trust to make those decisions for you. 

Living wills and POA documents can be relatively straightforward to create and inexpensive, too, depending on where you get them. You can find a free form to fill out online or hire an estate attorney or elder law attorney to create one for you — the most expensive option. If you're getting an online will, you may be able to add a living will or POA to your estate plan at a low cost. 

Learn more about how to create estate planning documents.