Wills, Living Wills, Medical Power of Attorney, and DNR’s – Knowing the Difference Means Life and Death

In my estate planning practice, one of the most common misunderstandings among clients I see is their concept of wills, living wills, medical powers of attorney, and DNR’s.  The majority of clients come to me either believing some or all of these terms are synonymous, or they confuse the concepts.    Ironically, although these documents are relatively easy and inexpensive to prepare, they are all imperative for adults, and ultimately may mean the difference between life and death.

First, a living will is a short document, which must be signed and notarized or witnessed by two uninterested (generally non-related) individuals.  The living will, if a client chooses to have one, essentially says that if ever has an incurable condition which will result in death within a short period of time, or she is permanently unconscious and there is no recovery within a reasonable degree of medical certainty, the client directs the attending physician to withdraw life support (“pull the plug” for my more direct clients!).  The living will may also specify whether the client, if in such an unfortunate situation, desires artificial nutrition and hydration.  

There are numerous advantages to living wills.  First, the living will gives the patient some control over the situation even though she is unconscious.  In addition, the living will generally makes the decision to withdraw life support a bit easier on the patient’s family, as the patient has already made the decision when she was fully competent and aware.  Finally, the living will often helps diminish the arguments which commonly ensue among family when faced with such a traumatic situation.  

In contrast, a medical power of attorney designates certain individuals to make all other health care decisions for the client if she is of unsound mind (for example, a patient with Alzheimer’s).  

A “Do Not Resuscitate Order” (DNR) generally applies in a situation where emergency personnel are responding to a medical call.  Unlike a living will and medical power of attorney, a DNR is most appropriate for the frail elderly, or persons with a chronic or terminal illness.  An attorney should not prepare a DNR.  This form can and should be obtained free-of-charge from your doctor.  Likewise, physicians can assist these individuals with the Iowa Physician Orders Scope of Treatment (IPOST).   The IPOST is a double-sided, one page document which allows a person to communicate her preferences for life-sustaining treatments including resuscitation, general scope of emergency treatment, and other things.  Without a properly executed DNR or IPOST (which means it must be signed by the doctor), emergency personnel must resuscitate a person no matter how old or frail the individual.  The State of Nebraska is currently entertaining legislation similar to the Iowa Physician Orders Scope of Treatment.  If passed, Nebraska residents will also be provided the option for this portable DNR known as Physician Orders For Life-Sustaining Treatment (POLST).

Finally, as commonly and loosely used, a Will generally refers to a person’s Last Will and Testament.  The Will must be properly executed.  Practicing in Iowa, Nebraska, and South Dakota, I can attest to the fact that all three states have different requirements for valid Wills.  The Will allows the person to direct where and how her assets should be distributed upon her death, her preferred executor (agent), and other post-death instructions.

Keep in mind that in order to sign a Will, living will, medical power of attorney, or DNR, you need to be competent.  Accordingly, it is advisable to consider these documents sooner rather than later in life.

The information contained herein is for informational purposes only, and is not legal advice or a substitute for legal counsel.  You should not act or rely on any information herein.