Medical power of attorney & living wills

John Ventura, author of "Kiplinger's Estate Planning."

TEXT OF INTERVIEW

Tess Vigeland: And now we're joined once again by John Ventura. He's the author of Kiplinger's Estate Planning. He's joined us over the last several weeks to talk about wills, trusts and other things we should all take care of sooner rather than later.

Glad to have you back, John.

John Ventura: Good to talk to you, Tess.

Vigeland: So we're going to talk today about an issue that really was thrust into the spotlight a few years ago with the case of Terry Schiavo and this is when you need somebody else to take over your medical care. I believe there are two issues involved here. One is called medical power of attorney and the other is a living will. So let's start with medical power of attorney. This is different from what we've previously talked about, which is durable power of attorney. What's the difference and what does medical power do?

Ventura: What a medical power of attorney does is it allows you to pick the person who's going to make the decisions with doctors if you should go into the hospital and you cannot make decisions about your health care. Basically, if you don't have one of these, then you have the Terry Schiavo case, so this is a very important document...

Vigeland: And it is not covered then by the durable power of attorney. These are separate documents.

Ventura: Right. It's someone who's going to be dealing with the doctor and the hospital and other health care providers on your behalf and there's another element of this that people don't realize: when you pick someone to be your health care representative, they're also going to have to deal with the rest of your relatives and this can be a terrible problem. I remember in one case where one son in a large family kept his father alive unnecessarily for months. It almost ruined the family because of the obstinacy of this one son and if there was a medical power of attorney and somebody strong as a representative, none of that would have happened.

Vigeland: Alright, how do you pick that person?

Ventura: Again, it has to be someone that's mature, has authority, someone that you have spoken with at length about how you want to be taken care of. You want someone that's going to agree with you, who would make the same decisions with the doctors that you would make yourself and also someone that's strong enough to deal with the other issues such as your family who's all going to have a stake in all this and are going to be worried about whether or not good decisions are being made.

Vigeland: OK. We've all heard of the idea of a living will. Do you need a living will if you've already designated someone with medical power of attorney? What's the difference and do you need both?

Ventura: I think you need both because a living will, it specifically gives you the right to say when you want medical attention to stop and to allow yourself to pass away. Health care power of attorney, usually the person that's acting there is acting under the authority to make decisions while you're trying to recover and there's still hope for you. The time that living will comes into effect is when the doctor comes in and says, "You know, we cannot do anything more. What do you want us to do?" and that final question is answered by the person that you designate in a living will.

Vigeland: What issues should you think about when you're preparing that will then? How detailed do you have to get in order for this to be absolutely enforceable?

Ventura: I think you need to get very specific so that there's no question about what your wishes are and its very tough. You know, while I was creating my living will, I was asking myself, "Do I want to extend my care if a doctor is saying that there is just nothing else to do?" and my answer to that was I don't want to extend myself, but it could be different for other people, so you have to make up your own mind about what has to be going on, what your representative has to be told to make the decision that you just don't want any more care to be taken on your behalf.

Vigeland: Alright, brass tacks again: How do you come up with your living will? Are there kind of general rules for the language that you need to put in to make sure its legal?

Ventura: You know, living wills are kind of the easiest document that you can obtain in your estate planning. You can go over the Internet and there's all kinds of free living wills available to people, actually, hospitals can give them out, doctors usually have a living will document that you put in the information that you need put in. The important thing in creating a living will to make ti work the way you want to is be specific for your representative about what has to happen when the decision is made not to continue with medical care. It may be "If a doctor tells you that there is no hope, then you can make the decision at the point" or "I want you to have the opinion of two doctors, then you can make the decision to discontinue any kind of care that I've been given."

Vigeland: And is this a document that you need signed by two, three people? Do you need it notarized?

Ventura: It's not so much notarization. Notarization determines if the person that signed it is in fact the person that signed it and it's different from a will that has witnesses. I mean, it's you signing it giving authority to the person that you've designated to make that big decision in your life.

Vigeland: John Ventura is the author of Kiplinger's Estate Planning and John, we'll talk to you again next week.

Ventura: Well, thanks Tess and I'm looking forward to talking to you next week.

Vigeland: And our topic then will be the basics of life insurance. After that, it's time to get to your estate planning questions. Keep them coming. John will be back with some answers at the end of our series.

About the author

Tess Vigeland is the host of Marketplace Money, where she takes a deep dive into why we do what we do with our money.

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