Health Care Power of Attorney, Living Will, and DNR:
What’s the Difference — and Do You Need All Three?
One of the most common areas of confusion in estate planning isn’t about wills or trusts—it’s about what happens if you can’t speak for yourself.
Most people have heard the terms “living will,” “health care power of attorney,” and “do not resuscitate order.” Many assume they’re different names for the same thing. They’re not. Each serves a distinct purpose under Ohio law, and relying on just one can leave critical gaps that force your family—or even a court—to make decisions for you.
At McCarthy Law Office, we help Cincinnati and Westside families understand these differences and make sure the right documents are in place before they’re ever needed.
The Big Picture: What Are “Advance Directives”?
“Advance directive” is the umbrella term for legal documents that address your health care wishes when you cannot communicate. In Ohio, the three most important are:
• Health Care Power of Attorney (HCPOA) — names a person to make decisions for you
• Living Will Declaration — records your specific wishes about life-sustaining treatment
• Do Not Resuscitate (DNR) Order — a medical order instructing providers not to perform CPR
These documents are related—but not interchangeable.
1. Health Care Power of Attorney (HCPOA)
A Health Care Power of Attorney designates a trusted person—your agent—to make medical decisions on your behalf when you cannot make them yourself. It becomes effective when your attending physician determines you lack the capacity to make informed health care decisions.
This is the most flexible and broadly applicable document. It applies in virtually any situation where you cannot communicate—not just end-of-life scenarios. For example, if you are unconscious after an accident but expected to recover, your agent—not a Living Will—guides your care.
Your agent must follow your known wishes. If your wishes are not known, they must act in your best interest. This makes your choice of agent critical. You should also name at least one successor agent.
Execution Requirements in Ohio
Must be signed by you in the presence of either two qualified adult witnesses or a notary public. Witnesses cannot be your agent, your health care providers, or individuals who would inherit from you. No person related to you by blood, marriage, or adoption may serve as a witness.
2. Living Will Declaration
A Living Will is a written statement of your personal wishes about life-sustaining treatment, directed to your health care providers. Where a Health Care Power of Attorney speaks through a person, a Living Will speaks directly to your doctors.
When It Becomes Effective
A Living Will only becomes effective in two specific situations under Ohio law:
• You are in a terminal condition and cannot communicate, or
• You are in a permanently unconscious state
Both require physician confirmation. A Living Will does not apply in most everyday incapacity situations.
What a Living Will Can Address
• Whether life-sustaining treatment should be withheld or withdrawn
• Preferences regarding tube feeding
• CPR decisions in qualifying situations
• Comfort care preferences
Execution Requirements in Ohio
Must be signed in the presence of either two qualified adult witnesses or a notary public. The same witness restrictions apply as with the HCPOA.
3. Do Not Resuscitate (DNR) Order
A DNR is a medical order—not a personal directive—instructing health care providers and emergency responders not to perform CPR if your heart stops or you stop breathing.
Unlike a Health Care Power of Attorney or Living Will, you cannot create a valid DNR on your own. It must be issued by a physician, advanced practice registered nurse, or physician assistant after consultation with you or your authorized decision-maker. Ohio uses a standardized DNR form issued by the Ohio Department of Health, recognized statewide.
Ohio’s Two Types of DNR Orders
• DNR-CC (Comfort Care): No CPR at any time; care focuses on comfort
• DNR-CC-Arrest: No CPR only if cardiac or respiratory arrest occurs
A DNR should be readily accessible. Ohio commonly recommends placing it on the refrigerator so emergency responders can find it quickly. Importantly, a DNR never means “do nothing”—comfort care, including pain management, is always provided.
How Do These Documents Work Together?
Ohio law establishes a clear priority when these documents overlap:
• A valid Living Will generally takes priority over your agent’s decisions
• A DNR you personally consented to generally takes priority over your agent
• An agent may override a DNR they previously consented to if your condition has substantially changed
The practical takeaway: these documents must be consistent and coordinated. Most problems we see are not from missing documents—but from documents that don’t work together.
What Happens If You Don’t Have These Documents?
If you become incapacitated without a Health Care Power of Attorney, no one automatically has the legal authority to make decisions for you—not even your spouse or adult children. Your family may need to go to probate court to have a guardian appointed, which means:
• Filing an application with the probate court
• Obtaining a physician’s evaluation of incapacity
• Attending a court hearing
• Ongoing court supervision and reporting requirements
This process takes time, costs money, and places decision-making under court oversight. Most people focus on avoiding probate after death—but proper planning also helps you avoid a guardianship proceeding during your lifetime. A Health Care Power of Attorney is one of the simplest and most effective ways to do that.
Do You Need All Three?
You almost always need a Health Care Power of Attorney. It is the most versatile document and covers both temporary and long-term incapacity.
A Living Will is an important complement if you have strong views about end-of-life care. It provides clear direction and removes uncertainty for your family.
A DNR is appropriate in more specific circumstances—typically for individuals with serious medical conditions, advanced age, or clear preferences about resuscitation. This decision should be made in consultation with your physician.
Common Mistakes to Avoid
• Not naming a successor agent. If your primary agent cannot serve, there may be no one authorized to act.
• Not having the conversation. A document alone is not enough—your agent needs to understand your wishes.
• Conflicting documents. Inconsistent instructions create confusion at critical moments.
• Inaccessible documents. Documents locked away or unavailable in an emergency are often useless.
• Outdated documents. Laws, relationships, and circumstances change. Documents signed years ago may no longer reflect your wishes.
• Using forms that do not comply with Ohio law. Improperly executed documents may be invalid when they are needed most.
Ready to Put Your Health Care Wishes in Writing?
If you don’t have these documents in place—or aren’t sure they work together under Ohio law—we can help you put a clear, coordinated plan in place. We regularly work with individuals and families throughout Cincinnati, Bridgetown, Delhi, Green Township, Cleves, North Bend, and across Hamilton County.
Call us at 513-815-7006 or visit danmccarthylaw.com to schedule a consultation.
McCarthy Law Office
7593 Bridgetown Road, Suite A
Cincinnati, OH 45248
By appointment | Virtual meetings available