by Sue A. Sponte

Created on: February 13, 2011   Last Updated: February 14, 2011

When trying to make plans to help cope with unexpected events, two options available are wills and powers of attorney.  Even among those two categories of documents, there are subsets.  For example, wills can be divided into last wills and living wills, and powers of attorney can be divided into general, specific, and health care powers of attorney.  The main difference between a will of any sort and a power of attorney is that a will sets out your desires for certain end of life matters, and a power of attorney grants another person the right to make those decisions for you.

A standard will, often referred to as a last will and testament, is the way that a person tells the legal system and family members how to settle the decedent’s estate after he or she passes away.  The major items that are often included in these wills include how the decedent wants his or her remains disposed of, who should get certain property that belonged to the estate, and who should look after any spouse or child left behind.  The will appoints an executor, which is similar to an agent in a power of attorney but with one major difference: the executor’s role is to carry out the terms of the will, not to make additional decisions that are not contained within the four corners of the will.  A major drawback to a will is that it does not get executed until after the testator (the person who wrote the will) has died.

Many people want to leave specific instructions for how certain things should be taken care of before they die.  In particular, what types of medical procedures should be used and at what point should the doctors stop trying to save a life.  Because I will is silent until after death, a separate document can be used to make those desires known.  In some locations this is referred to as a living will.  In some places it is referred to as a healthcare declaration.  The idea, however, is similar to a will.  It allows a person to tell the world what his or her desires are for pre-death end of life decisions.  The exact rules for setting up one of these directives vary from state to state, so a local attorney who specializes in estate planning or end of life law can help make sure that local requirements are met.

Even the best will cannot foresee all possible eventualities.  A power of attorney works together with a healthcare directive to give a trusted agent that ability to make decisions that are not covered by the direct requirements in the living will.  In a medical power of attorney, somebody is given the authority to speak on a person’s behalf to make decisions about when enough treatment or life saving efforts have been made, and when the time has come to stop artificial efforts to prolong life.  Many planners or attorneys will develop a power of attorney in concert with a living will so that the two documents fit together to provide instructions for what can be predicted along with the authority for a person to make decisions that could not be predicted.

The difference between a will and a power of attorney comes down to this: a will gives specific instructions about how to respond to certain events, and a power of attorney grants a trusted gent the right to extend the desires in a will to account for unforeseen events.  Both are key components of an end of life plan and can have the effect of saving loved one from having to guess at what your desires are, or fighting over those decisions in court.

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