Planning for health care decision making includes two key components:
1. Preparation of a written advance directive, more commonly referred to as a living will, durable health care power of attorney, or health care proxy.
2. Appointing someone to be your trusted agent to speak for you when you cannot speak for yourself regarding health care decisions.
What are Advance Directives?
These legal documents help clarify your health care desires to family members and medical professionals when you are unable to communicate them due to a serious illness or injury.
In some states, there are statutory forms that individuals can print, fill out, and sign before witnesses. In other states, both statutory forms and customized advance directive documents are allowed. In all states, individuals may add more specific and personalized clauses to their advance directives.
It is important for you to appoint a trusted agent to speak for you when you are unable to speak for yourself with respect to medical decisions. Once a trusted agent is appointed, it is vital that you discuss your desires with your agent, your loved ones, and your doctor.
The Need
Medical science has improved greatly and can often keep you alive in situations that previously would have caused death, but the ability to remain alive can be associated with diminished ability to make your own health care decisions.
The courts can be asked to appoint a guardian to make health care decisions for you if you are unable to make your own decisions. But court intervention can be expensive, time-consuming, and emotionally difficult for you and your family. The need for guardianship to make health care decisions can often be avoided with an advance directive that names a surrogate health care decision maker who can act during temporary or permanent periods when you cannot make your own decisions.
What You Need to Know
An advance directive may be called a durable health care power of attorney, health care proxy, or a health care surrogate designation, depending on the law of the state in which you reside. These health care planning documents should reflect your own views and wishes related to your care, and they can be very specific in the instructions that you leave. The document can also be more general, leaving it to the health care agent to make decisions in keeping with your known wishes. Importantly, the health care agent is generally required to make decisions in keeping with your known wishes. You can change your agent and the instructions that you give as long as you retain the mental capacity to understand the change you are making.
You may also want to sign a living will, sometimes referred to as a health care declaration. This type of document should state your preferences for health care if you have a terminal illness or are in a permanent vegetative state. This type of legal document can list your wishes for pain management at the end of life, can instruct doctors and other health care staff on the type of treatments you do or do not want, and can provide for spiritual, emotional, and comfort items that you would like to be present at the end of life.
Where to Go for Help
These legal documents are highly personal and should be discussed with an attorney who is very knowledgeable in this area in order to meet your individual needs. While there are pre-printed forms available, these mass-produced forms will not have considered your personal needs and may not really meet your goals for how your individual care should be handled. Elder Law Attorneys are well versed in health care decision making issues and numerous medical treatment options.
When meeting with an Elder Law Attorney, you will be counseled about the choices available to you under the laws of your state. You will also receive advice and guidance about who can or should be named as your health care agent or alternate, and you will receive instruction on the proper legal requirements for the health care planning document.
Privacy laws may make it difficult for designated agents to gain access to medical records or to function as health care decision-makers. Elder Law Attorneys can draft documents to avoid these problems.
This information is provided as a public service and is not intended as legal advice. Such advice should be obtained from a qualified Elder and Special Needs Law attorney.
Members of the National Academy of Elder Law Attorneys are experienced Elder and Special Needs Law attorneys. Visit the website, and click on “Find an Attorney.”
