Healthcare Directive
Summary
Documents stipulating a person’s desires regarding their medical treatment in advance generally fall into the category of “healthcare directives.” Within this category, these are the main vehicles used to communicate medical-decision desires into legal form:
• Living Will
• Advanced Directive
• Health Care Power of Attorney
Important: State laws vary
It is critical to note that state law varies on how advanced directives and health care powers of attorney are executed and interpreted. It is important that clients consult with their legal professional prior to executing any estate planning document.
Living Will
A living will is a statement or declaration that a person may make indicating their wishes for specific medical treatment to be either provided or withdrawn under specific circumstances, It is recommended that this document be well thought out, and drafted prior to an illness or imminent death.
However, there can be limitations to living wills. For example, some statutes allow living wills to become effective only where death will occur in a relatively short period of time, whether or not specific medical treatment is provided. Therefore, a living will may be only effective if no type of medical treatment would prevent imminent death. Furthermore, some statutes may not allow certain provisions, such as a person’s desire to withhold artificially supplied hydration and nutrition.
Advanced Directive
For those individuals who have instructions regarding their medical decisions that go beyond what the living will statute will provide may decide to execute an advanced directive. A living will is a type of advanced directive that is governed by a specific statute. Non-living will advanced directives can generally give the individual the right to make medical care related directions that may exceed the limitations of a living will statute.
Generally, these instructions need to be “clear and convincing,” can be customized to meet the desires of individuals, and do not need to be in a specific format.
Health Care Power of Attorney
A health care power of attorney allows an agent, named by your client, to be an authorized person in making those medical decisions when your client is not able to do so. It is sometimes recommended that individuals have both a living will and a health care power of attorney. Having both of these documents indicate your client’s wish regarding medical decisions and may provide a greater degree of certainty to health care professionals and family.