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

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?

Expert Answer

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.