Living Wills, Health Care Proxies, & Advance Health Care Directives

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Introduction

With the increasing ability of medical science to sustain our lives, people are living much longer than ever before. Unfortunately, as we grow older, or if we experience health challenges, we may find ourselves in a position in which decisions need to be made as to how we wish to be treated in a variety of medical situations. This is especially true at the end of our lives, but can be true at any time as a result of the impact of an accident, injury, or illness. If we are in a condition such that we no longer can express our preferences about treatment, decisions will be made for us by others if we have not planned for our own treatment in advance. Advance health care directives allow us to deal with these situations. Without such directives, our families may find it necessary to obtain court orders to deal with our medical situations.

State laws vary concerning the appropriate documents to cover these situations. All fifty states permit you to express your wishes as to medical treatment in terminal illness or injury situations, and to appoint someone to communicate for you in the event you cannot communicate for yourself. Depending on the state, these documents are known as "living wills," "medical directives," "health care proxies," or "advance health care directives." Some states have a standardized or statutory form, while other states allow you to draft your own document.  But even if you use a standard or statutory form, you should review it to be sure that it comports with your personal wishes. Never sign a document presented to you as standard unless you have read and understood it and confirmed that it does in fact reflect your desires.

 

Living Wills

A living will is your written expression of how you want to be treated in certain medical circumstances. Depending on state law, this document may permit you to express whether you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact your care, including the end of life. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that may sustain and possibly extend your life, but which may not by themselves cure your condition. Be very careful signing any such document without reviewing the implications to you. For example, some of the commonly used clauses in living wills may forbid the provision of assisted breathing, including devices you presently may be using if, for example, you are living with COPD.  Most important, many of the provisions of such a document have profound religious and philosophical implications. Be certain that whatever you sign is consistent with your beliefs and wishes. In addition to terminal illness or injury situations, most states also permit you to express your preferences as to treatment using life-sustaining equipment or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.

A living will applies in situations in which the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death.  Having a living will does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive.  In all states the determination as to whether you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you or reviewed your medical situation.

 

Health Care Proxy

A "health care proxy," sometimes called a "health care surrogate" or "durable medical power of attorney," is a durable power of attorney specifically designed to cover medical treatment.  You appoint a person and grant to him or her the authority to make medical decisions for you in the event you are unable to express your preferences about medical treatment. Most commonly, this situation occurs either because you are unconscious or because your mental state is such that you do not have the legal capacity to make your own decisions. As with living wills, depending on your state of residence, the health care proxy may be a standard or statutory form or it may be may be drafted specifically for you by your lawyer.  Normally, one person (not multiple persons to act at one time) is appointed as your health care proxy.  It is quite common, however, for you to appoint one or more alternate persons (successors) in the event your first choice proxy is unavailable. You should confirm prior to appointing someone as your proxy that he or she will in fact be willing and able to carry out your wishes. If your preferred proxy  has, for example, a religious view that prevents him or her from carrying out your wishes, you should name someone else.  As in the case of a living will, medical professionals will make the initial determination as to whether you have the capacity to make your own medical treatment decisions.

 

Why Have Health Directives?

Regardless of the name your state gives to these documents, their purpose is to allow you to express your preferences concerning medical treatment in an extreme medical situation when you cannot communicate, including at the end of your life. By expressing such preferences in a written legal document, you are ensuring that your preferences are made known. Physicians prefer these documents because they provide a written expression from you as to your medical care and designate for the physician the person he or she should consult concerning unanswered medical questions. Rather than the physician having to obtain a consensus answer from your family as to your treatment, the physician knows your preferences and knows who you want to provide decisions when you cannot do so.  Also, providing such information and designating a health care proxy means that the physician knows whose direction is to be followed in the event your family disagrees as to what medical treatment you would want.

In addition to helping your physician, these documents express your wishes to your family so that they do not have to guess about what you would want.  Making your wishes known in advance prevents family members from making hard choices at what likely will be one of the most stressful times in their lives.

 

Obtaining and Maintaining Living Wills and Health Care Proxies

Your lawyer can provide you with these documents. Generally, these documents require at least two witnesses, who must be adults as defined under your state law. It is the policy of some hospitals and other medical institutions not to permit their employees to witness the signing of such documents. Most states have other restrictions as to who may witness such documents. Generally, the persons who act as witnesses are not permitted to be individuals entitled to any inheritance as a result of your death, either by will or by state law.  Often, state law does not permit persons to witness such documents if they are related to you by blood or by marriage or if they are responsible for payment of your medical bills.  Some lawyers recommend that these documents be notarized as well as witnessed.

While all states recognize these types of documents, the law varies as to whether a state will recognize a document prepared in another state. It is not necessary to prepare additional documents in case you might vacation in another state. If you spend a considerable amount of time living in more than one state, however, you should consider having such documents prepared in each of the states in which you spend significant periods of time.

Should you change your mind about your health care treatment or end of life decisions or your choice of health care proxy, you can simply destroy the documents you have and create new ones. Once you have a living will, health care proxy, or advance health care directive, you should keep it among your important papers. Make sure a responsible adult, such as the named health care proxy, knows where you keep these documents. If you have a regular physician who keeps your medical records, you should provide a copy of the document to him or her for your medical records. In the event you are admitted to a hospital, you should take this document with you at the time you are admitted and permit the hospital to place a copy of it into your medical file.  It is also a good idea to discuss the decisions you have made in your document with family members so that they may better know and understand your wishes concerning these matters.

 

Organ and Tissue Donation

In many states you can include in your advance directive your preference to become an organ or tissue donor at the time of death. State law varies, and you should check with your attorney. Even if your state is one in which your driver's license contains an organ or tissue donor statement, you need to let your health care proxy, your family, and your physician know your desire to become a donor. In some states you also need to be registered as an organ and tissue donor. Given the long list of people who die each year waiting for organ donations, donating your organs and tissue can be a tremendous help to those in need.  Be certain to consider religious and other issues that may impact your decision to become a donor. 

 

Communication is the Key

Many people prefer to keep their legal documents private. With end of life issues, however, communicating your wishes is essential. An advance health care directive is the first step in this process. But you also need to discuss your preferences with others. Take the time to discuss these issues with the person you appoint as your health care proxy. Talk to your physician. Make sure your family knows how you feel about end of life issues. The more these individuals know, the easier it will be for them to fulfill your wishes. While the conversations are no doubt difficult, they will relieve those you appoint of tremendous emotional burdens by your having personally explained your desires.

Disclaimer

Disclaimer of Liability: This site is provided as a public service by the ABA Section of Real Property, Trust and Estate Law. While the information on this site is about legal issues, it is not legal advice or legal representation. Because of the rapidly changing nature of the law and our reliance upon outside sources, we make no warranty or guarantee of the accuracy or reliability of information contained herein or at other sites to which we link. We assume no responsibility for any information, advice or services provided by any site to which we link.

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