Back to the Basics: Understanding the Difference Between an Ohio Health Care Power of Attorney and an Ohio Living Will
Prospective clients often call and tell me they “need a simple living will.” They usually mean they want a will – and likely a trust, general power of attorney, health care power of attorney, living will, and real estate documents – but the point is clear: everyone has heard of a “living will,” and they know they need one. Or do they?
Most clients assume a health care power of attorney and living will are one and the same. In fact, when you are admitted to the hospital or visit the BMV, they often ask if you have a “health care power of attorney and living will.” One would certainly be forgiven for assuming this is all one document. The truth is, they are two very different documents, and not everyone should sign a living will.
Health Care Power of Attorney. In Ohio, a health care power of attorney authorizes a named agent – usually a family member, such as a spouse or child – to receive the principal’s protected health information (e.g., talk to doctors, access medical records) and make any number of medical decisions on behalf of the principal when the principal is not able to make those decisions himself or herself. A health care power of attorney may also (but need not) authorize an agent to consent to withhold or withdraw artificially-provided nutrition and hydration if two physicians agree that the principal is permanently unconscious or in a terminal condition. Every person over the age of 18 should execute a health care power of attorney.
Living Will. A living will declaration, on the other hand, authorizes the principal’s physician (not a family member or other named agent) to withhold or withdraw consent to the provision of artificially-provided nutrition and hydration if that physician and one other physician agree that the principal is permanently unconscious or in a terminal condition. Therefore, the purpose of a living will is to document the principal’s affirmative wish that life-sustaining treatment be withheld or withdrawn under those conditions, and to authorize a physician to make that final decision. Unlike a health care power of attorney, which applies to all health care matters when the principal is incapacitated, a living will applies only in limited end-of-life circumstances.
Notably, the statute is clear that a living will controls over a health care power of attorney with respect to the withdrawal of nutrition and hydration when the principal is permanently unconscious or in a terminal condition. If a physician makes a decision to withdraw nutrition and hydration in accordance with a living will, they must make a reasonable effort to notify the contacts named in the living will, which are usually the same as the agents named under the principal’s health care power of attorney. If a person notified feels the living will is not being properly followed, an immediate hearing can be scheduled in the local probate court to determine whether there is a legal reason that the living will should be disregarded, but no one can change or overrule a living will if it was freely and properly executed.
I should note, however, that in my experience, physicians tend to rely on the family and/or agents named under the health care power of attorney to make end-of-life decisions long before turning to the living will, so in practice, the living will tends to be a catch-all should no agent under the health care power of attorney be available to make a decision.
So Who Should Sign a Living Will? All told, an individual should execute a living will if (i) he or she wants artificially-provided nutrition and hydration withheld or withdrawn if they are permanently unconscious or in a terminal condition AND (ii - a) they are comfortable with their physician withholding or withdrawing life-sustaining treatment in lieu of family members or other named agents OR (ii – b) they have no family members or close friends to name as agents under a health care power of attorney.
If you’d like to discuss these topics or other estate planning matters, or I can ever be a resource to you or your clients, please contact me at 513.579.6488 or acentner@kmklaw.com.
