Any competent adult, 18 or older, has the right to make his or her own healthcare decisions. An individual can specifically tell the doctors these wishes, but if a person is severely injured, unconscious, gravely ill, or mentally incompetent, the individual cannot.
In the event of your inability to make healthcare decisions, someone needs to know your wishes in order to make healthcare decisions for you.
In 1986, South Carolina created the Declaration of a Desire for a Natural Death (aka living will) as part of the Death with Dignity Act. It is important to note that a living will has no effect whatsoever over your estate upon your death. It is a health care document.
In 1992, South Carolina created the Healthcare Power of Attorney (hereinafter “HCPOA”) as part of the South Carolina Health Care Power of Attorney Act. It is important to note that a HCPOA gives no authority for someone to manage your finances should you become incapacitated. It only pertains to your healthcare.
Both documents are generally termed “advanced directives.”
It is important to understand the differences between the HCPOA and the living will, as the two documents are not interchangeable. Both documents have different rules that govern their interpretation and application, which can cause them to conflict with each other.
The main difference between the two documents deals with the scope of the documents.
A person creating a living will is called a “declarant.” The living will designates no agents, and only directs a health care provider to withhold certain “life-sustaining procedures,” including artificial nutrition and hydration, if the declarant has a “terminal condition” or is in a state of “permanent unconsciousness.”
A person creating a HCPOA is called the “principal.” The principal can name an “agent” who is given the authority to make all health care decisions for the principal, both general and end-of-life decisions, if the principal is unable to make them.
This document goes beyond the scope of a living will and can be a crucial document to have in your estate planning toolbox if a situation occurs where you are unconscious, but not permanently unconscious.
A person can have both a HCPOA and living will, or a person can have one or the other. If you elect to have both documents, you must ensure the two documents are not in conflict with one another. If a conflict should arise, the living will overrides the HCPOA.
These documents are a vital part of anyone’s estate plan. By executing these documents, you are ensuring your health care desires are known, and a person you designate will be in charge of making such decisions, should you become unable.
However, due to the complex nature of these documents, it is prudent to speak to a qualified estate planning attorney who can assist you in creating a plan that ensures your medical wishes are carried out.
Rebekah Thompson is an associate attorney with Elder Law & Estate Planning Center. hiltonheadelderlaw.com
