Living Wills & Powers of Attorney for Health Care

Most people aren't eager to spend time thinking about what would happen if you became unable to direct your own medical care because of illness, an accident, or advanced age. However, if you don't do at least a little bit of planning -- writing down your wishes about the kinds of treatment you do or don't want to receive and naming someone you trust to oversee your care -- these important matters could wind up in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer.

There are two basic documents that allow you to set out your wishes for medical care: a living will and a durable power of attorney for health care. It's wise to prepare both. In some states, the living will and the power of attorney are combined into a single form -- often called an advance directive.

Types of Health Care Documents

Living Wills

Powers of Attorney for Health Care

You'll also want what's usually called a durable power of attorney for health care. In this document, you appoint someone you trust to be your health care agent to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive.

When Do Health Care Documents End

Your written wishes for health care remain effective as long as you are alive, unless you specifically revoke your documents or a court steps in (but court involvement is very rare). Here are a few specifics about when your health care documents are no longer effective:

You revoke your document. You can change or revoke a health care document at any time. Just be sure that your health care providers and your agent know of your intention to cancel the document.

A court invalidates your document. Most judges recognize that a court is normally not the right place to make health care decisions. However, if your health care is the subject of a dispute and someone questions the validity of your health care directives, the matter may end up before a judge.

-  If someone doubts that you had the mental capacity to prepare a legally valid health care document, that person can ask a court to invalidate your document. Such lawsuits are rare, but they do sometimes occur. The burden of proving that you were not of sound mind when you made your document falls on the person who challenges its validity. (In other words, the law presumes that you had the mental capacity to make your health care documents.)

-  It is also possible that a court could invalidate your document if it wasn't properly completed  for example, if you did not meet your state's requirements for having the document notarized or witnessed. If this happens, however, it is still likely that any wishes for health care you set out in the document will be followed -- as long as they are clearly expressed and you were of sound mind when you wrote them down.

A court revokes your agent's authority. If, after your health care documents take effect, someone believes that your health care agent is not acting according to your wishes or in your best interests, the concerned person can go to court and ask for an investigation of your agent's behavior. If a court finds that your agent is acting improperly and revokes his or her authority, the job will go first to an alternate agent you named in your document. If there is no available alternate -- or if the court invalidates your entire document for one of the reasons discussed just above -- a conservator or guardian will be appointed to make health care decisions for you.

You get a divorce. Getting divorced has no effect on your written directions for health care (your health care declaration). But if you named your spouse as your health care agent, his or her authority is automatically revoked in a number of states. In that case, if you named an alternate agent, that person will take over.

-  If you get a divorce before your health care directives take effect, it's wise to eliminate confusion by starting over. Even if you named an alternate agent, make a new document and name someone else as your agent.

After your death. Generally, your health care documents are no longer necessary when you die. In some states, however, your health care directives remain effective after your death for some very limited purposes. Your agent may be permitted to supervise the disposition of your body, including authorizing an autopsy or organ donation, unless you specifically withheld these powers when you made your health care documents.

When Do Health Care Documents Take Effect

Your health care documents take effect if your doctor determines that you lack the ability -- often called the "capacity" -- to make your own health care decisions. Lacking capacity usually means that:

-You can't understand the nature and consequences of the health care choices that are available to you, and

 

-You are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Practically speaking, this means that if you are so ill or injured that you cannot express your health care wishes in any way, your documents will spring immediately into effect. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care agent or close relatives) will decide whether it is time for your health care documents to become operative.

You will always be able to dictate your own medical care if you have the ability to do so. And even when you are no longer capable of making your own decisions, your health care agent must always act in your best interests and diligently try to follow any health care wishes you've expressed in your health care declaration or otherwise.

First, you need a written statement that details the type of care you want (or don't want) if you become incapacitated. This document is most often called a living will, though it may go by a different name in your state. A living will bears no relation to the conventional will or living trust used to leave property at death; it's strictly a place to spell out your health care preferences.

 

Life-Prolonging Medical Care

In most states, living wills ask you whether or not you want to receive life-prolonging treatments at the end of life. Such procedures typically include:

-  Transfusions of blood and blood products

-  Cardiopulmonary resuscitation (CPR)

-  Diagnostic tests

-  Dialysis

-  Administration of drugs

-  Use of a respirator

-Surgery

-Food and Water

If you are close to death from a serious illness or are permanently comatose, you may not be able to survive without the administration of food and water. Unless you indicate that treatment should be withheld, doctors will use intravenous (IV) feeding or tubes to provide you with a mix of nutrients and fluids. IV feeding, where fluids are introduced through a vein in an arm or a leg, is a short-term procedure. Tube feeding, however, can be carried on indefinitely.

 

Permanently unconscious patients can sometimes live for years with artificial feeding and hydration without regaining consciousness. If food and water are removed, death will occur in a relatively short time due to dehydration, rather than starvation. Such a course of action generally includes a plan of medication to keep the patient comfortable.

When you make your health care documents, you can choose whether you want artificially administered food and water withheld or provided. This decision is difficult for many people. Keep in mind that as long as you are able to communicate your wishes, by whatever means, you will not be denied food and water if you want it.

If you want death to occur naturally -- without life-prolonging intervention -- it does not mean you must forgo treatment to alleviate pain or keep you comfortable. This type of care, sometimes known as "comfort care" is now more commonly called "palliative care."

Rather than focusing on a cure or prolonging life, palliative care emphasizes quality of life and dignity by helping a patient remain comfortable and free from pain until life ends naturally. Palliative care may be administered at home, in a hospice facility, or at a hospital.

You may wish to spend some time educating yourself about palliative care. You can include your feelings and preferences about such care in your living will.

Palliative Care (Pain Relief)

In most states, living wills ask you whether or not you want to receive life-prolonging treatments at the end of life. Such procedures typically include:

-  Transfusions of blood and blood products

-  Cardiopulmonary resuscitation (CPR)

-  Diagnostic tests

-  Dialysis

-  Administration of drugs

-  Use of a respirator

-Surgery

-Food and Water

If you are close to death from a serious illness or are permanently comatose, you may not be able to survive without the administration of food and water. Unless you indicate that treatment should be withheld, doctors will use intravenous (IV) feeding or tubes to provide you with a mix of nutrients and fluids. IV feeding, where fluids are introduced through a vein in an arm or a leg, is a short-term procedure. Tube feeding, however, can be carried on indefinitely.

 

Permanently unconscious patients can sometimes live for years with artificial feeding and hydration without regaining consciousness. If food and water are removed, death will occur in a relatively short time due to dehydration, rather than starvation. Such a course of action generally includes a plan of medication to keep the patient comfortable.

When you make your health care documents, you can choose whether you want artificially administered food and water withheld or provided. This decision is difficult for many people. Keep in mind that as long as you are able to communicate your wishes, by whatever means, you will not be denied food and water if you want it.

DNR Orders and POLST Forms

Some people who do not wish to receive life-prolonging treatment when close to death -- most likely those who are already critically ill -- may also want to prepare a "do not resuscitate" order, or DNR order. If a medical emergency occurs, this form alerts emergency personnel that you do not wish to receive cardiopulmonary resuscitation (CPR).

If you are in the hospital, your doctor can add a DNR order to your medical record. If you are not hospitalized, you can make what's called a "prehospital DNR order," to alert paramedics who come to your home or care facility. In addition to preparing a prehospital DNR order, you should also obtain an easily identifiable MedicAlert-type bracelet, anklet, or necklace.

In an increasing number of states, DNR orders are being included in or replaced by a broader set of medical orders called "Physicians Orders for Life-Sustaining Treatment" (POLSTs) or something similar. In addition to instructions about CPR, POLST forms include directions to health care providers about other life-prolonging treatments, such as intubation, antibiotic use, or feeding tubes. In this way, a POLST is something like an advance health care directive or living will, but it is not a complete substitute for those documents.

If you think you might want to make a DNR order or POLST, talk to your doctor or a hospital representative.

Powers of Attorney for Health Care

You'll also want what's usually called a durable power of attorney for health care. In this document, you appoint someone you trust to be your health care agent (sometimes called an attorney-in-fact for health care, health care proxy, or surrogate) to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive.

Who Can Make Health Care Documents

You must legally be an adult (18 years old in most states) to make a valid document directing your health care. You must also be of sound mind -- that is, able to understand what the document means, what it contains, and how it works.

Maurice Robinson
Legacy & Estate Planning, LLC
602-770-2513
MauriceR2@gmail.com
www.LegacyAndEstatePlanning.com

23233 N. Pima Rd #113-290

Scottsdale, AZ 85255

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Maurice Robinson 602-770-2513

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