Living Wills, Health Care Powers of Attorney, DNR Orders and Health Care Surrogate Act provisions are among the various kinds of health care directives that are available. Medical providers are increasingly concerned about obtaining health care directives and often have their own forms. The best plan is to prepare the directives you want give them to the medical providers, rather than use theirs.
A Health Care Power of Attorney is the most comprehensive health care directive and allows a person to identify other people in some order of succession with the authority to act as an agent to make decisions about health care and personal matters. Powers of Attorney are usually prepared with estate planning documents so it is effective in the event one becomes incapacitated and unable to make necessary health care and personal decisions directly. Health Care Powers of Attorney cover the entire gamut of possible health care and personal decisions that might need to be made and can be tailored to one’s specific instructions.
Additional health care directives might also be desired. For instance, a Living Will is very often prepared along with a Health Care Power of Attorney as a part of routine estate planning. Living Wills are misnamed. They are not Wills at all, but are health care directives. A Living Will is a document that a physician could rely upon directly, without needing to refer to an agent, if the condition of the person who signed the Living Will meets the criteria as follows: “An incurable and irreversible injury, disease or illness, judged to be terminal by the attending physician who has personally done an examination and determined that death is imminent except for death-delaying procedures.”
If a doctor determines that the person meets those conditions, the Living Will provides the following direction: “I direct that such procedures which would only prolong the dying process be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication, or the performance of any medical procedure deemed necessary by my attending physician to provide me with comfort care.”
In addition to Living Wills, there are other sources of health care directives. For instance, the Health Care Surrogate Act applies if a person has a “qualifying condition” as defined in the Act. The Act allows third parties the authority to make decisions for patients who lack “decisional capacity” who have a qualifying condition as defined by the Act. The Act does not apply if other health care directives have been executed, such as a Living Will, Declaration for Mental Health Treatment, or Power of Attorney. The Act identifies the people who have the authority to make decisions on behalf of someone who lacks decisional capacity in the order of the following priority:
(1) Guardian of the Person;
(2) Guardian of the Spouse;
(3) Any adult son or daughter;
(4) Either parent;
(5) Any adult brother or sister;
(6) Any adult grandchild;
(7) A close friend;
(8) The Guardian of the Estate.
The Health Care Surrogate Act is a safety net that allows decisions to be made on behalf of a person who is unable to make those decisions if that person has not exercised the right to leave instructions by other means. It is preferable and advisable for people to exercise the right to identify the person or persons you prefer to make those decisions, and to leave your own instructions in regard to that decision making.
If you do not have health care directives in place for yourself or your loves ones, please contact us. If you have not your estate planning or your estate planning is old, you should also consider getting your estate in order. We include health care directives as part of the package of estate planning documents that we do for a flat fee. We would love to help you.