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Health Care Advance Directives and How to Choose your Attorney in Fact

Advance directives are composed of two legal documents: A Durable Power of Attorney for Health Care and a Health Care Directive.

A Durable Power of Attorney for Health Care is a legal document appointing someone of your choice to make healthcare decisions for you if you become unable to do so because of injury, illness, or diminished capacity. This document is specific to health care decisions and is not the same as a general Durable Power of Attorney, such as for business and finances, which focuses on non-health care decisions. The Durable Power of Attorney for Health Care is used to provide continued management of your health care affairs.

Advanced Health Care Directive

A Health Care Directive is also known as a living will, wherein you give instructions to your power of attorney about how you want your end-of-life decisions to be handled. With this legal document, a person can declare which medical procedures he or she wants or does not want performed when terminally ill or in a persistent vegetative state. This document is called “living” because, unlike testamentary wills, it takes effect before death.

When creating your Health Care Directive, make sure you give a lot of thought to your end-of-life decisions. You want to make sure that your instructions are both understood and respected. “Standard-Form” health care directives do little to influence end-of-life decisions without (1) informed and thoughtful reflection about your values and wishes; and (2) personal communication between you and your likely decision-makers- your designated attorney in fact for health care, for example- before a crisis occurs.

Good advance planning for health care decisions is really a continuing conversation about values, priorities, and quality of life and what that means to you. Before you create a Health Care Directive, or while you are working with your estate planning attorney, make sure you take the time to discover, clarify and communicate what is important to you when facing a serious illness.

How to select your Health Care Agent

When you decide to select someone to speak for you in a medical crisis, if you are not able to speak for yourself, there are several things to think about. The person best suited to be your health care agent, or proxy, will rate well on such qualifications as:

  • Willing to speak on your behalf
  • Able to act upon your wishes and separate that from his or her own feelings
  • Lives close by or is willing to travel if you need them there
  • Someone you trust
  • Someone you know well and who knows you well and understands what is important to you
  • Able to handle conflicting opinions between family members, friends and medical personnel

In most states, the agent must be over age eighteen (18); must not be your doctor or health care provider, unless this person is a spouse or close relative; and must not be an employee of your health care provider, unless this person is a spouse or close relative. After you’ve chosen your agent, make sure to tell that person, ask permission to name as agent, and talk to him or her about the qualifications listed above. Discuss your health care values, wishes and fears. Make sure your agent gets a copy of your legal health care directive and Durable Power of Attorney for health care. Finally, tell close friends and family members who you have appointed.

Also, you will need to decide how much authority to give your agent. Most people want to give the broadest authority possible to make all health care decisions when they are unable to speak for themselves and make those decisions, including about the use of life-sustaining treatments such as the administering of artificial nutrition and hydration. If you don’t want to give broad authority, think carefully about what limitations you would impose and why; and describe them as best you can in your health care directive.

Without a Durable Power of Attorney for Health Care, and if no one steps forward to make decisions on your behalf, a court may appoint a conservator or guardian. Therefore, it is very important that you create these documents now while you are still competent to make such decisions. Talk to an experienced estate planning attorney about your options, what documents you need, and how to decide upon your health care agent. Remember, not to decide in advance leaves the door open for someone else to decide for you. Careful planning now is the best way to avoid complicated health care situations later in life.