What happens if there is no living will or durable power of attorney?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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A living will is a document where you give instructions about your health care if you should become incapacitated and unable to give direction yourself. A durable power of attorney (also called a “power of attorney for health care”) names a person you trust to make these decisions for you. Living wills and durable powers of attorney come into effect only if you are unable to make health care decisions for yourself. Your capacity to make decisions is determined by the law of your state. Usually your primary or attending physician makes the decision.

If you have not planned ahead for this situation and either left directions about your health care or appointed the person you want to make the decision, the decision-making power passes according to the laws of your state. Usually a family member or relative makes the decisions, sometimes a close friend, the attending doctor, or a court-appointed guardian. You might want to make decisions yourself ahead of time, or you might want to hand over the medical decisions to someone you trust, someone who can make the decisions considering the treatment available at the time you become incapacitated.

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