What is the difference between an advance directive, health care power of attorney, and a living will?

Apr 11

Attorneys have a tendency to use a lot of legal jargon that can confuse virtually everyone. One example of this is when we start talking about advance directives, health care power of attorneys, and living wills.

To further complicate the issue, states use different language or names to describe each form, which is why it’s so important to work with an attorney familiar with your state specific law.

For example, in Massachusetts, we have a health care proxy and within that health care proxy some practitioners will include something called an “advanced health care directive.” Massachusetts also has medical orders (generally completed by your doctor, PA, or NP) such as the MOLST - which stands for medical order life sustaining treatment.

Then you have New Hampshire, which has a statutory “advance directive” form that includes both a health care power of attorney (virtually the same thing as a health care proxy in Massachusetts), but also includes a “living will” which is similar the the advanced health care directive found in some Massachusetts health care proxies, except that the living will in New Hampshire is legally binding (in Massachusetts, it is not).

And instead of the MOLST (in Massachusetts), New Hampshire has a POLST (provider order for life sustaining treatment). So if you have a home / vacation home in both states and you are older or have a chronic condition, then it may make sense to have both forms completed in Massachusetts and New Hampshire.

I know I just threw a lot at you, so let’s dig a little deeper to show you how these forms work with one another in order for you to make the best estate planning decisions for you and your family.

The New Hampshire Advance Directive Form

As stated above, this is a statutory form that has two components:
(1) a durable power of attorney for health care, and
(2) a living will.

The durable power of attorney for health care allows you to assign a person (called an “agent”) to make medical decisions on your behalf only if you are unable to make such decisions yourself. For that reason, this document only comes into play (generally speaking) when you are incapacitated.

Once again, this power of attorney for health care is the equivalent of the health care proxy in Massachusetts, so when you name someone to serve in that role, then you are granting that person relatively broad powers to make any and all medical decisions for you if/when you become incapacitated.

However, New Hampshire does have a subsection within the health care power of attorney that allows you to specify certain limitations on that person’s powers.

For example: I do NOT want my agent …

to ask for or agree to stop life-sustaining treatment (such as breathing machines, medically administered nutrition and/or hydration (tube feeding), kidney dialysis, other mechanical devices, blood transfusions, and certain drugs).... Or to ask for or to agree to a Do Not Resuscitate Order (DNR order).... Or to agree to treatment even if I object to it in the moment, after I have lost the ability to make healthcare decisions for myself… and so on.

While the specific limitations section may seem helpful in theory, it can actually confuse people or complicate things because it’s really hard to consider all implications involved when predicting a potential medical event. For example, maybe if you’re completing this form in your 50’s, you’d want your health care agent to be more aggressive in pursuing life sustaining treatment, but in your 80’s you might feel quite differently. In other words, while you’d like to think you’d update this health care power of attorney every 5 years or so, the reality is that you may sign it and put in a drawer for 20 years until it becomes relevant.

For this reason, I generally direct my clients to not place unnecessary restrictions on their health care agent, especially when that person is there spouse or close family member.

But wait, what about the living will?

The living will is the second component of the New Hampshire advance directive and it provides two broad statements with respect to life sustaining treatment that allows the health care agent a bit more flexibility (but still some direction) as to your general wishes when it comes to medical decision making:

The two options are:

Option A. I wish to have all attempts at life-sustaining treatment (within the limits of generally accepted health care standards) to try to extend my life as long as possible, no matter what burdens, costs or complications may occur.

Option B: I do NOT wish to have any life-sustaining treatment attempted that I would consider to be excessively burdensome or that would not have a reasonable hope of benefit for me. I wish to receive only those forms of life-sustaining treatment that I would not consider to be excessively burdensome AND that have a reasonable hope of benefit for me. Unless I have crossed out and initialed a sentence written below, then I would consider the following to be excessively burdensome:

Most clients choose the second option. And please keep in mind (as stated earlier) that Massachusetts doesn’t have a legally binding living will, but we often put the second option as an “advanced health care directive” in our health care proxies to offer similar guidance to the health care agent.

Can my health care agent supersede my living will?

In Massachusetts, yes, a health care agent can supersede your advance directive because it’s not legally binding. In New Hampshire, however, you can specify whether the health care agent is limited from superseding your living will. If not specifically limited, then the New Hampshire health care agent is generally also able to supersede your living will if he/she thinks it’s in your best interest to do so.

If my health care agent can supersede my living will, then what’s the point in having one?

Regardless of whether you live in Massachusetts or New Hampshire, the living will provides guidance to your health care agent that can substantially reduce the emotional decision making burden on the agent, and also provide clarity.

And, in New Hampshire at least, if for some reason the health care agent (or backups) are unavailable or unable to make a medical decision on your behalf, then it gives your medical provider a backup authorization to follow your wishes if/when needed.