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Properly Handling Living Wills and Durable Healthcare Powers Of Attorney

“Living wills” and durable healthcare powers of attorney are most commonly encountered by Notaries working in the healthcare industry — but these documents are different from last wills and testaments, and they sometimes have special notarization requirements.

  • A so-called “living will” refers to a document in which the signer gives instructions regarding medical treatment in the event the signer is incapacitated or unable to communicate due to a health condition. For example, a living will could provide instruction on whether a signer wishes to remain on life support if suffering from a terminal illness or if in a permanent coma or vegetative state. A living will may be notarized, depending on state law.
  • Living wills are usually limited to the withholding or withdrawing of life-sustaining procedures for patients with terminal conditions or illnesses and may not cover every possible medical scenario. Thus, many people also execute a durable power of attorney for health care, which names a specific person to make medical decisions on the signer’s behalf if the signer is incapacitated. “Durable” means that the power of attorney remain in effect even after the principal becomes mentally incapable.
  • To prevent abuse of durable healthcare powers of attorney, most states require the document to be notarized and/or witnessed when being signed.
  • Notaries should be aware of all pertinent state requirements for signing and notarizing durable healthcare powers of attorney. For example, in California, a principal signer having a durable healthcare power of attorney notarized must leave his or her right thumbprint in the Notary’s journal, and a power of attorney executed in a skilled nursing facility must be witnessed by a patient advocate or ombudsman.

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