Living Wills and Durable Health Powers

Question 1

Living wills versus Durable Health Care Powers

Answer 1

Question 2

Living wills versus Durable Health Care Powers: execution and revocation

Answer 2

Execution: a signed writing is necessary. Many states require 2 witnesses.

Revocation: power can be revoked by any manifestation of intent to revoke it.

Note that otherwise, a durable power remains in effect until and unless rescinded by the principal.

Question 3

Individuals eligible to be an agent for a durable healthcare power

Answer 3

In many states, a witness is required and the person designated as the agent cannot be a witness to the power.

Under the Uniform Health Care Decisions Act, a designated agent can be a witness to the durable health care power of attorney. In fact, no witness is even required under this Act!

Question 4

Authority of agent or attorney-in-fact

Answer 4

Generally, agent must act in good faith in following the instructions on the document.

The typical durable health care power of attorney statute immunizes the agent from civil liability for health care decisions made in good faith.

Question 5

Family consent statutes

Answer 5

Even if one does not have an effective living will or durable healthcare power of attorney, family consent laws permit close family members to act as a surrogate decision maker for a patient where there is no properly authorized agent acting under a durable power.