Most people would rather not discuss dying. However, proper end-of-life planning is essential to making sure your wishes are respected and saving your family the agony of having to make difficult end-of-life decisions. You may also wish for certain procedures to be undertaken – or not – in the event you become incapacitated and can’t decide for yourself. For these and related concerns, you need an advance healthcare directive.
At MacKay & Martin, LLP, we put our experience to work so our clients can make the right decisions for them and their loved ones. We can explain how advance healthcare directives work and help you draft and execute these important documents.
Why Would I Need An Advance Healthcare Directive?
If you become incapacitated or otherwise unable to make healthcare decisions for yourself, including end-of-life ones, it’s important that your personal wishes regarding medical care are respected. The advance healthcare directive exists for this purpose. For example, the directive can be used to decide what type of life-sustaining treatment you may want (if any) if you become permanently comatose.
In the absence of this legal document, however, these and other decisions concerning your health could be made by strangers. Even where loved ones or close family members are able to decide for you, they likely will not know how you would’ve decided certain issues. Sometimes this results in relatives arguing with each other or, as you may remember from the case of Terri Schiavo, even going to court over what decisions should be made. While nothing can guarantee the absence of conflict over your personal wishes, the advance directive makes it far less likely.
There’s a myth that these types of documents are only for the elderly or those in poor health. However, anyone can suffer a serious accident that could leave them without the ability to make fundamental healthcare decisions for themselves. Even if you’re young and healthy, it is never too soon to plan for unexpected and life-altering changes.
What Does An Advance Healthcare Directive Do?
An advance healthcare directive is a legal form that allows someone to do one or both of the following:
- Appoint a healthcare agent. Your agent is someone who has legal authority to make healthcare decisions for you in certain circumstances. This is a trusted individual who can step in at any designated period when you are unable to decide things for yourself.
- State your healthcare wishes. You can use the directive to express your wishes for what should be done if you cannot actively decide at the time. This may include, for instance, a desire not to prolong the process of dying if you have a terminal condition. Your doctor and healthcare agent are obligated to abide by your lawful wishes.
These two elements can, and often do, work in concert with one another. For example, even though your agent has legal authority to make decisions for you, the directive may set limits or restrictions on that power.
Who Can Be My Healthcare Agent?
Almost any adult can be your healthcare agent. It should be someone trusted like a spouse, family member, or close friend. You can also appoint alternate agents in the event your agent cannot or does not want to serve. Some individuals, such as your doctor, are not able to be your healthcare agent.
As long as the healthcare agent acts in good faith, he or she will be immune from liability. However, before choosing your agent, you should speak with that person to make sure they are able and willing to take on this responsibility.
What Powers Would My Agent Have?
First and foremost, your healthcare agent has to act within any limitations set in your advance directive. Generally, however, your doctor and other healthcare professionals will defer to the judgment of your agent. That includes these and other powers:
- Accept or refuse medical treatment
- Access your medical records
- Donate your organs
- Make an anatomical gift of your body to a university
- Dispose of your body
Again, these are all exercised within the restrictions of your advance healthcare directive, which means the powers you assign to your agent can be broad or limited. Neither your agent nor your doctor can override the explicit instructions set forth in your directive, which is why careful drafting and working with an experienced attorney are essential.
Is A Healthcare Directive The Same Thing As A Living Will?
Living wills are similar to healthcare directives, but the key difference is that the living will only concerns life-sustaining measures that may be taken when someone is terminally ill or permanently unconscious. The advance healthcare directive includes these provisions, but may also apply any time you are unable to make decisions for yourself (not just when you are in a coma or terminally ill).
The advance directive is, therefore, more comprehensive. You don’t need a living will if you have already expressed your wishes about life-sustaining measures in your advance directive.
How Can MacKay & Martin Help Me?
Our estate planning attorneys understand the laws surrounding advance healthcare directives, and we know how to apply those laws to your situation. Every client’s wishes and concerns are different, and we develop a customized approach to the legal solutions they need.
You may have an already existing advance directive that’s out of date and needs to be modified. Regardless, we want to make sure your voice is heard in the event you are unable to make a medical decision. And we want to give your family the assurance they need that you maintain control over your healthcare.
The advance healthcare directive is an important component of your estate planning, and we’re here to provide the services you need to confidently prepare for your future. Call MacKay & Martin, LLP, today and find out what we can do for you.