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Estate planning includes preparation of health care directives

California residents who engage in estate planning often ask questions about the difference between a health care power of attorney and a living will. Generally, people have little understanding of what each does until they meet with their estate planning attorney for a review of their needs. A living will generally is a legal instrument that the individual signs and that expresses his or her concerns about end-of-life decisions.

It is an advance medical directive that tells doctors and health administrators how the patient wants to have treatment administered or not administered in the final days or weeks of life. The living will can advise the health care providers that the patient does not choose to have life artificially prolonged at the point that a terminal illness wipes out the patient's quality of life. Generally, this instrument is prepared by the estate planning attorney when the client requests the construction of an estate plan.

It is also theoretically possible for the individual to make a living will that requires the health care providers to keep the client alive by using every known means for that purpose. The health care power of attorney is a legal instrument in which the principal appoints a health care representative to act in his or her stead to make medical decisions if the principal is disabled and mentally incompetent to make such decisions. The power does not kick in unless the maker enters into a period of incompetence.

The above two documents can overlap in that the health care proxy may authorize the representative to make end-of-life health care decisions. Any conflict can be eliminated by making clear in both documents that the living will prevails regarding end-of-life health care decisions. Both of these legal instruments are necessary under California estate planning considerations, despite the minor overlapping that may occur. Although we don't think in terms of needing such tools, the future is not predictable, and the vagaries of life and death can take many twists and turns. It is always best to be prepared.

Source:, "Estate Planning: End-of-life decision making", Christopher Yugo, March 18, 2018

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