The different legal documents that make up an estate plan interact in different ways, and achieving the outcome you want requires careful preparation. If you have both a healthcare power of attorney and a living will in place, you might wonder which one takes priority.
What Is a Living Will?
A living will (also known as an advance healthcare directive) allows you to specify which types of medical care you want or don’t want when you’re unable to advocate for yourself. A living will goes into effect when doctors certify that you are unable to make decisions—in other words, when you’re in a terminal condition or permanently unconscious.
For example, you can stipulate whether you want life-sustaining treatment like feeding tubes or ventilators. You can also explain whether you want to be resuscitated.
What Is a Healthcare Power of Attorney?
A healthcare power of attorney lets you name someone to make medical decisions on your behalf if you are incapacitated. You may see a healthcare power of attorney referred to as a “healthcare agent” or “attorney-in-fact.”
While living wills apply only in specific medical situations, a healthcare power of attorney can handle a broader range of decisions. Your agent can talk to your doctors, access your medical records, and approve or refuse treatments, even if you’re not terminally ill or incapacitated.
Which Document Takes Priority?
Generally, Missouri law prioritizes the wishes expressed in your living will. Your power of attorney must follow those instructions for it to be effective. However, your agent may have some discretion, depending on how your documents are written.
If your living will clearly states your treatment preferences, your agent cannot override those choices unless you specifically give them that authority in your power of attorney document. On the other hand, if your living will is vague or silent on a certain issue, your agent may need to make the decision for you.
Missouri courts have consistently ruled that an agent under a power of attorney must act according to the known (written) wishes of the person who created the documents.
What Happens When There’s a Conflict?
Conflicts between a healthcare power of attorney and a living will can come up when:
- The living will says one thing and the health care agent chooses another.
- The language in the documents is ambiguous or incomplete.
- Multiple family members disagree on how to interpret your wishes.
Advance planning is most effective when your documents reflect your values and give your agent enough information to act on your behalf. You can also include a clause stating whether your agent is bound by your living will or if they may override it in certain circumstances. To reduce confusion, follow these steps:
- Use clear, specific language in both documents.
- Work with a lawyer so your documents comply with Missouri law.
- Decide whether your agent has the authority to override your living will, and state that explicitly.
- Talk to your healthcare agent about your wishes.
- Give copies of both documents to your doctor, hospital, and trusted family members.
If a conflict can’t be resolved, it may require court intervention. A judge will consider the documents, your known preferences, and the agent’s legal authority. The court can remove an agent who fails to act in your best interests or follow your stated wishes.
Plan for the Future with an Experienced Missouri Estate Planning Attorney
Planning ahead gives you control over your medical care, even when you can’t speak for yourself. If you’re interested in creating a living will and naming a healthcare power of attorney, working with an attorney is the best way to make your intentions clear and enforceable. Call Martin & Birdsong, Attorneys at Law, to get started.