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Law Offices of Ronald W. Rutz
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January 5, 1999: Universality of Living Wills; Limits of a General Power of Attorney

Q: A story in a Denver newspaper indicated that for $4 I can get a living will form that will be good in 33 states, including Colorado. Has the law changed?

A: The law has not changed. Wills and durable powers of attorney are enforceable in sister states. But each state decides its own rules on living wills. Thus, what is permissible in one state may not be honored under another state's laws.

I obtained a copy of the document you had noticed for free from the Internet. In my opinion, it may or may not work, not because it is a living will, but because it really is a modified medical power of attorney. Remember a medical power of attorney can always give someone the right to decide for another as to whether to turn off the machines (or even not turn them on). There is nothing new about that. But besides durable powers of attorney, most attorneys have their clients sign living wills so that this one difficult decision is removed from the appointed person under the powers and so that the person knows that the machines will be stopped (just because someone has the power does not mean the person will direct them to be shut off when the time comes).

So save your money and insure your peace of mind by picking up from (and probably signing at) your local hospital the Colorado forms for both the medical durable power of attorney and for the living will. And despite what you hear and read, living wills will be honored in Colorado. If the family meets resistance, an elder law attorney should take over.

Q: I thought my Mom's general power of attorney would let me, as an agent, do anything for her. I keep running into one frustration after another.

A: Powers of attorney need to be drafted very carefully. Although it is unnecessary (and impossible) to list every possible power, here in Colorado, such things as gifting, setting up trusts, an agent being involved personally in a transaction, etc., all must be clearly set out in the power of attorney. Real estate powers are also strictly construed. And too many governmental agencies (in my opinion) now have the legal right to refuse to honor a power, unless a special government form (for that entity) is used.

If it is not too late, have an attorney draft a better power. If your Mom is not legally competent to sign a new one, vigorously insist that the document you have be respected. If new powers are done, be sure that more than one copy is signed in case you are forced to leave an original for a third party's permanent in-house file.

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