power of attorney

Making a Medical Power of Attorney and Living Will Can Be a Tough Decision—An Estate Attorney’s Guidance

Sometimes referred to as a “Medical Power of Attorney”—including in the title of this post— Virginia law refers to these documents as “Advance Medical Directives.”  And creating one is crucial to make it clear who can make medical choices and what the character of choices made on your behalf should be under certain medical circumstances. Determining what to do in such situations can be difficult. But that difficulty is nothing compared to neglecting to make such a decision, leaving a loved one to contend with the anguish of making a decision on your behalf without guidance—and to always wonder whether they made the choice you would have made. (This uncertainty can haunt people for the remainder of their days.) Our estate attorneys can help you to make the right choice about a medical power of attorney up front.

Put simply, unlike wills, Advance Medical Directives place medical decision-making power in the hands of another person under circumstances when you cannot make those decisions for yourself, but while you’re still alive.

Advance Medical Directives are binding legal documents that put forth not only who you want to make decisions, but also what you would like to happen in situations where you are at the end of life. This specific language is called a “living will.”

The term “living will” can be confusing because the fact is, they aren’t wills at all. Virginia law defines “terminal condition” (at § 54.1-2982) as, “a condition caused by injury, disease or illness from which, to a reasonable degree of medical probability a patient cannot recover and (i) the patient’s death is imminent or (ii) the patient is in a persistent vegetative state.” “Persistent vegetative state” is defined under the same section of code as “a condition caused by injury, disease or illness in which a patient has suffered a loss of consciousness, with no behavioral evidence of self-awareness or awareness of surroundings in a learned manner, other than reflex activity of muscles and nerves for low level conditioned response, and from which, to a reasonable degree of medical probability, there can be no recovery.”

The only person who can revoke an Advance Medical Directive is the person to whom it applies—but it can be changed by that person whenever they wish, so as to ensure it is up to date and reflects their current wishes.

Interestingly, Virginia permits oral Advance Medical Directives. In this situation a person in a terminal condition may simply state their wishes on these matters to their physician—so long as it is also done in the presence of two other witnesses. But this is not the wisest of situations. The likelihood that a person will make lucid decisions when in a terminal condition, especially as compared to decisions made when they have the capacity and mental distance to really think about a scenario, is fairly low.

That’s why it’s better to create an Advance Medical Directive well ahead of any such situation—in fact, as soon as you are able. We can help you with that. This is the sort of legal document you want to have securely in place when you need it—and the nature of life is such that you never know when you’ll need it.

Learn More About Appointing a Medical Power of Attorney or Advance Medical Directive

If you’re on the fence about deciding whether you need an Advance Medical Directive, attend one of Promise Law’s free estate planning workshops. These workshops provide a great foundation of information that everyone needs to make sound planning decisions. Moreover, if you attend a workshop, you also get a complimentary one-on-one consultation with one of our attorneys.


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