Which document takes precedence: power of attorney or living will?

2 answers | Last updated: Sep 14, 2016
Confused and disturbed asked...

In my possession I have both documents, made out on the same day. The two documents are in contradiction of each other in regards to end of life, lifesustaining treatment. Which one should be adhered to?

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Carolyn Rosenblatt, R.N. and Attorney is the author of author of The Boomer's Guide to Aging Parents. She has over 40 years of combined experience in her two professions. As a nurse, she has extensive experience with geriatrics, chronic illness, pain management, dementias, disability, family dynamics, and death and dying. As a trial attorney, she advocated for for the rights of injured individuals and neglected elders. She is also co-founder of AgingParents.com.

Dear Confused: Laws vary from state to state and I therefore can't answer what the law of your state says. However, all have a distinction between a power of attorney for finances and business affairs and the end of life document called a living will, healthcare directive or power of attorney for healthcare. They are not and cannot be the same document. The law intends for the elder to be able to appoint someone who can make end of life decisions for him or her if the elder is unable to speak for himself. That is the purpose of the healthcare directive. The document you are calling a living will may be a healthcare directive. If it is, it is intended for healthcare decisions and not for anything else. If the power of attorney document you refer to is the standard kind used for finances, it is not intended to be used for the purpose of healthcare decisions. Since you do not identify how two totally separate legal documents with different purposes can contradict each other on end of life issues, I can't answer which takes priority. It does not make sense that both would address the power to make end of life decisions. I strongly suggest that you get appropriate legal advice from an elder law attorney.

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Denis clifford answered...

You state that you have two documents that are in contradiction regarding end of life and life-sustaining treatment. While you don't state what these documents are called, I suspect that one is a "living will" and the other is a "durable power of attorney for health care" (which can go by other names, such as "health care directive"). I doubt if one of the documents is a durable power of attorney for finances. That document is not designed or intended to cover end of life matters.

My first question to you is if you know, or have any idea, how and why the two documents you have, both signed on the same day, have contradictory statements regarding end of life. Was there a mistake made in one of the documents? How can you know that?

I doubt if you'll get much help by seeing (hiring) a lawyer. I've never heard of a situation like this, and I'd bet that any lawyer you hire wouldn't have heard of it either. And it is highly unlikely that there is any law in your state, or court case, that resolves this kind of conflict.

I gather that the person who made these two documents is no longer mentally capable of stating what he or she wants, or deciding which document correctly expresses. Obviously, if the person who made the documents is still competent, you should find out what she or he really wants.

If you can't find out what she or he really wants"”or wanted"”you may face a difficult decision. If the person who made the documents has pressing end of life issues, you can either: 1) Do nothing, and allow someone else, or some institution, decide how those end of life issues should be resolved, or 2) Do your best to to decide what the person who made the documents would have wanted done. Then use the documents that authorizes what you think he or she wanted.