Where there’s a will, there’s . . . an advance directive for healthcare (Part 1 of 2)

When a client comes to us to have a will drafted, we make sure that the client, at the end of the process, has not only a will but a complete set of basic estate planning documents. The set also includes an advance directive for healthcare and a financial power of attorney, two documents that enable you to influence what happens to you and your property while you are alive but unable to take care of these matters yourself.

An advance directive for healthcare (“advance directive”) is a legal document that combines the traditional living will and medical power of attorney. It is a vehicle to help you accomplish two primary objectives: appointing a healthcare agent and expressing your wishes as to end-of-life decisions.

• Appointing a healthcare agent. Through an advance directive, you may choose to nominate a person to serve as your healthcare agent. A healthcare agent is a person who is authorized to act on your behalf when you are unable to, or choose not to, communicate your decisions when it comes to your medical treatment. Medical professionals turn to your agent only when you are unable to communicate with them as to your treatment or when you say that you would like for them to turn to your agent. Your agent then has the same access to your healthcare records that you do and can disclose information from your records to others for your ongoing care. Your agent has the authority to make the decisions that you could make yourself – admitting or discharging you from a healthcare facility; entering agreements with doctors, hospitals, or other facilities or service providers on your behalf for provision of your care; and requesting, consenting to, withholding, or withdrawing any kind of care or treatment. Furthermore, the person may accompany you if you must be transported in an ambulance and may consult with you in person while you are in a healthcare facility. Finally, you may opt to give your agent the authority to make decisions as to the disposition of your body after death.

• Expressing preferences for end-of-life decisions. You may also use an advance directive as a way to set forth your general opinions and preferences as to end-of-life decisions, including use of nutrition or fluids by medical means, a ventilator, or cardiopulmonary resuscitation. The preferences that you express in your advance directive will go into effect only if you are unable to communicate your treatment preferences after medical personnel make reasonable and appropriate efforts to have you do so. You may also designate the situations when your preferences would be effective. They would go into effect only when your attending physician and another physician examine you and certify in writing that you have a terminal condition or are in a state of permanent unconsciousness. If your preferences go into effect, your physician will use them to guide decisions if your agent is unavailable or, if your agent is available, your agent will take your choices into account in making these decisions for you.

Once you have an executed advance directive, you should provide a copy to your primary physician and any specialists who should reasonably have a copy. If you face a medical emergency, you or your agent should provide a copy to your attending physician as soon as possible. If a healthcare provider has a copy of your advance directive, the provider is obligated to enter the advance directive in your records, grant your agent adequate access to you, consult with your agent, comply with your agent’s decisions, and give your agent the same right to examine and copy your medical records that you would have. While your healthcare provider is not required to comply with your end-of-life treatment preferences expressed in your advance directive, one who refuses must notify you or your agent of his or her refusal and permit you to be transferred to another physician who is willing to comply with your wishes.

These subjects are, of course, not fun to contemplate. Taking the time to consider them and execute an advance directive, however, may save your loved ones from some of the challenges they would face if you were ever in a difficult medical situation.

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Check back in two weeks for part two of this series, explaining financial powers of attorney.

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