We are a student and tutor working together on a presentation, and are
having a hard time finding a few key facts. Help is appreciated! What
exactly, in simple English, is a living will, and what is a health
care proxy? How are they the same, and how are they different? Also,
can you tell us how medical guardians are chosen, and what the steps
are to appoint someone a guardian? Thank you!

Hello fieldlily-ga!

I can?t say that I blame you for wanting this in simple English. Many
people find the differences confusing (I personally think that the
term ?living will? is a confusing designation for people because most
people know what a ?will? is and if they?re thinking along those
lines, well, it?s easy to misunderstand and get confused). That being
said, let?s try to make a clear distinction!

Living Will

According to investorwords.com, a living will (sometimes called an
?Advance Medical Directive? or ?Advance Directive? for short) is
defined as ?a document in which one specifies which life-prolonging
measures one does, and does not, want to be taken if one becomes
terminally ill or incapacitated.?

http://www.investorwords.com/2852/living_will.html


Health Care Proxy

Health care proxy is another name for durable power of attorney (in
some states anyway). It basically gives another person the authority
to make medical decisions for you if you?re unable to make them for
yourself.

http://estate.findlaw.com/articles/2165.html


The basic difference is that the living will is the document that
expresses one?s medical wishes should the person become incapacitated
and the health care proxy is the legal authority given to another
person to make decisions for one who becomes incapacitated. The
similarity lies in how both documents (living will and health care
proxy) ideally work toward the same objective?honoring the
wishes/working on behalf of the incapacitated person.


Medical Guardians

Medical Guardians refer to those who have durable power of attorney
(or, in other words, health care proxies).

Choosing a health care proxy can be a very sensitive and personal
decision. I?ve found some good material on how to choose a health care
proxy on findlaw.com that answers the question, ?who should I choose
as a healthcare proxy??:

?The person you name as your healthcare proxy should be someone you
trust -- and someone with whom you feel confident discussing your
wishes. While your proxy need not agree with your wishes for your
medical care, you should believe that he or she respects your right to
get the kind of medical care you want.
The person you appoint to oversee your healthcare wishes could be a
spouse or partner, relative or close friend. Keep in mind that your
proxy may have to fight to assert your wishes in the face of a
stubborn medical establishment -- and against the wishes of family
members who may be driven by their own beliefs and interests, rather
than yours. If you foresee the possibility of a conflict in enforcing
your wishes, be sure to choose a proxy who is strong-willed and
assertive.
While you need not name someone who lives in the same state as you do,
proximity should be one factor you consider. The reality is that the
person you name may be called upon to spend weeks or months near your
bedside, making sure medical personnel abide by your wishes for your
healthcare.
You should not choose your doctor, or an employee of a hospital or
nursing home where you are receiving treatment. In fact, the laws in
many states prevent you from naming such a person. In a few instances,
this legal constraint may frustrate your wishes. For example, you may
wish to name your spouse or partner as your representative, but if he
or she also works as a hospital employee, that alone may bar you from
naming that person. If the law in your state bans your first choice,
you will have to name another person to serve.?

http://estate.findlaw.com/articles/2165.html#E535CBC7-7B0C-4A02-A168F4B1431B882B

Here are some sample forms that I?ve found for you:

Living Will Form (free)
http://www.peopleslawyer.net/willform.html

Living Will Form ($5)
http://www.livingwillsnow.com/

Also, this website gives additional information and links to specific
information regarding living wills ordered by state.
http://www.medlawplus.com/library/legal/livingwillform.htm

****

Durable Power of Attorney for Health Care Form (free)
http://www.med.umich.edu/1libr/aha/umlegal02.htm

This site is ordered by state (fee)
http://www.uslegalforms.com/poweratty.htm

I hope that the information provided as well as links to forms are
helpful to you, and I certainly hope that I?ve helped to clarify any
confusion for both of you! Should you need further clarification,
please let me know how I can help. Good luck to you!

Sincerely,
Boquinha-ga

Search Terms Used:

Living will
Living will definition
Living will form
Health care proxy definition
?Medical guardianship?
durable power of attorney health care
durable power of attorney health care form

Thank you very much!

You may not be asking this question, but for a bit more clarity (I'm
not a lawyer):

living trusts are widely used in some US states, like California; Suze
Orman created a popular tear-out book (the CD's were a bit faulty),
and there is a Nolo book. They may not be used after a person is
incapacitated; wills and living trusts are for when you have most of
your marbles. Most of the goals of a living trust, until an abuse of
Medicaid became popular, were to avoid the expense of probate. (Any
lawyer who says there are established maximums and hopes you miss the
distinction from established minimums doesn't deserve to be your
lawyer -- probate is negotiable.)

Powers of attorney are separate but are often bundled in the living
trust package. A reason to have a power of attoney but not a trust
would be a house with a very low cost basis, but this is definitely
where you get an attorney involved, and hopefully someone you've known
since high school. The work required of a POA may be huge, and one is
supposed to handle affairs exactly as that person would have. Banks do
not honor outside POA's though they may help you make an "X" literally
on their forms.

Power of attorney for healthcare tends to be in one person's hands,
but not necessarily the same person.

In all of the above, the incapacitated may go to Vegas and blow a wad
at the tables if they feel like it.

Conservatorship is where you go to the Court. There are state fees and
an examination, as well as legal costs. I haven't heard of doing it
for less than $2,000. The Court may require you to come before the
court every year or more often. The cost is a reason not to go this
route, but it has advantages over the POA. Also, if there are multiple
POA's, one could obtain a conservatorship and cancel the others, if
there were malfeasance. I have no idea what the actual process
entails, but most financial institutions allow for conservatorships.
Here, you're the guardian.

There are special allowances made for "primary caregivers" in
California, such as a Medicaid provision where keeping a person out of
institutional care for a year or two allows their house to be exempted
from confiscation in order to pay down Medicaid debt, where the house
asset is transferred to the caregiver. This is a looser definition of
guardian. You'd have to look that up yourself...

Hello fieldlily-ga,

Thank you for taking the time to rate my answer.

Sincerely,
Boquinha-ga