Health Care Directives
Health care directives, also known as advance directives, are legal documents that outline your medical treatment preferences should you become incapacitated and unable to make decisions for yourself. They are a critical component of any comprehensive estate plan, ensuring that your health care wishes are respected and followed.
→ What is a health care directive?
A health care directive, also known as an advance directive, is a legal document that outlines your wishes regarding your medical treatment in the event that you become incapacitated and unable to make decisions for yourself. This can include instructions about specific medical treatments you want or do not want, such as life-prolonging measures, pain management, or organ donation.
→ Why do I need a health care directive?
A health care directive is crucial because it ensures your medical treatment preferences are respected and followed when you can no longer communicate or make decisions for yourself. It provides clear guidance to your doctors and loved ones, reducing confusion and disagreements about your care. Without a health care directive, your family members or doctors would have to make these difficult decisions without knowing your wishes.
→ Can I change my health care directive once it's established?
Yes, you can change or revoke your health care directive at any time as long as you are mentally competent. Changes should be communicated to everyone who has a copy of your directive, including your doctors and health care agent. It is also advisable to destroy all copies of the old directive to avoid confusion.
→ Who should have a copy of my health care directive?
Copies of your health care directive should be given to your health care agent, your doctors, and any family members or loved ones who may be involved in your care. Some people also choose to keep a copy in a safe but accessible place at home or carry a card in their wallet indicating they have a directive and where it can be found.
→ Does a health care directive expire?
Generally, a health care directive does not expire and remains in effect until you revoke it. However, some states may require you to renew certain directives, like a Do Not Resuscitate (DNR) order, after a certain period of time. It's a good idea to review your directive regularly, especially if your health condition changes, to ensure it still reflects your current wishes.
→ Can I have separate health care directives for different medical conditions?
Yes, you can have separate directives for different medical conditions, as long as they all comply with the laws in your state. For example, you might have one directive for end-of-life decisions and another for mental health treatment. However, it's important to ensure that all your directives are consistent and don't contradict each other.
Living Will (Advance Directives)
A living will is a written, legal document that spells out the types of medical treatments and life-sustaining measures you want and don't want, such as mechanical breathing, tube feeding, or resuscitation. For example, should you suffer a severe stroke leaving you in a coma, your living will would guide your doctors and loved ones on whether to pursue aggressive life-saving treatments or focus on comfort care.
→ What kinds of medical treatments can I include in my living will?
In a living will, you can include your preferences for a variety of medical treatments. This may involve directives about the use of dialysis, ventilation, artificial nutrition, hydration, and pain management. You can also specify whether or not you would like to be resuscitated if your heart stops or if you stop breathing. Furthermore, you can express your wishes regarding organ and tissue donation.
→ Do I need a lawyer to create a living will?
While a lawyer can provide valuable guidance and ensure that your living will is legally sound, you do not necessarily need one to create this document. Many states provide forms that you can fill out on your own. However, the laws regarding living wills vary by state, so you should ensure that any form you use complies with your state's laws. If your situation is complex or you have specific questions, it can be beneficial to consult with an attorney.
→ What's the difference between a living will and a last will and testament?
A living will and a last will and testament serve different purposes. A living will is a document that outlines your medical treatment preferences in case you become unable to make decisions for yourself. It is used while you are still alive but incapacitated. On the other hand, a last will and testament directs how your assets should be distributed after your death and names an executor to manage your estate.
→ Can my living will override the decisions of my health care agent?
In many cases, a living will and a health care agent work together. The health care agent uses the living will as a guide to making decisions that align with your wishes. However, if there is a conflict between the living will and the health care agent, the rules vary by state. Some states may give precedence to the living will, while others may prioritize the decisions of the health care agent. It's essential to discuss your wishes in detail with your health care agent to avoid any confusion or conflict.
→ What happens if I change my mind about my treatment preferences after I've created a living will?
You have the right to change or revoke your living will at any time, as long as you are mentally competent. This can be done by destroying the original document, creating a new one, or expressing your intent to revoke the document in front of witnesses. Any changes should be communicated to your health care provider and health care agent immediately.
→ Can a doctor refuse to comply with my living will?
In general, doctors and medical professionals are legally obligated to follow the directives in your living will. However, there may be circumstances where a doctor might refuse to comply, such as if they believe the directives go against medical ethics or if they are personally uncomfortable with the directives. In such cases, the doctor is typically expected to transfer your care to another health care provider who is willing to comply with your directives.
Appointing Agents
In addition to a living will, you can also appoint a health care proxy or agent. This person is entrusted with the responsibility of making medical decisions on your behalf if you're unable to do so. This person should be someone you trust and who understands your values and wishes. It's important to have conversations with this person about your medical preferences to ensure they can accurately represent your wishes.
→ Who can I appoint as my health care agent?
You can appoint anyone who is a legal adult (usually 18 or older) and who you trust to make medical decisions on your behalf as your health care agent. This can be a spouse, adult child, other relative, or close friend. It should be someone who is familiar with your values and wishes and who you believe can make decisions under potentially stressful circumstances.
→ What does a health care agent do?
A health care agent has the authority to make medical decisions on your behalf if you are unable to do so. These decisions can range from approving routine medical procedures to making end-of-life care decisions. The health care agent's role is to ensure that your health care providers follow your wishes as outlined in your living will or other advance directive.
→ Can I appoint more than one health care agent?
Yes, you can appoint more than one person to act as your health care agent. If you choose to do this, you can specify whether they must make decisions together (jointly) or whether each can act independently (severally). If you appoint multiple agents, it's important to clearly define how decisions should be made to avoid potential disagreements or confusion.
→ Can my health care agent be a family member?
Yes, a health care agent can be a family member. In fact, spouses and adult children are commonly chosen for this role. However, it's essential that the individual is someone you trust to make decisions in accordance with your wishes, regardless of their relationship to you.
→ Can my health care agent also be my executor or trustee?
Yes, your health care agent can also serve as the executor of your will or the trustee of your trust. However, it's crucial to consider the demands of each role. Serving as a health care agent, executor, and trustee can be a significant responsibility, especially if they must be carried out simultaneously.
→ What happens if my health care agent is unable or unwilling to serve when needed?
If your health care agent is unable or unwilling to serve when needed, your healthcare providers will turn to your alternative agent, if you have named one. If no alternative has been named, or if the alternative is also unable or unwilling to serve, the laws of your state will determine who will make decisions on your behalf. Typically, this will be a close family member. This highlights the importance of naming an alternative agent in your health care directive.
HIPAA Authorization
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects the privacy of your medical information. A HIPAA authorization allows your doctors to share your medical information with your health care agent and other individuals you designate. Without it, your health care agent may not be able to obtain the necessary information to make informed decisions about your care.
→ Why do I need to include a HIPAA authorization in my health care directive?
A HIPAA authorization is important because it allows your healthcare providers to share your medical information with the individuals you've appointed as your health care agents. Without this authorization, privacy laws may prevent your healthcare agents from accessing the information they need to make informed decisions about your care.
→ Who can I authorize to receive my medical information?
You can authorize any individual you trust to receive your medical information. This is often the person you've appointed as your health care agent. However, you can also choose to authorize additional individuals, such as family members or close friends. This can be especially useful in situations where you want these individuals to be aware of your medical condition and the decisions being made about your care.
→ Can I revoke a HIPAA authorization?
Yes, you can revoke a HIPAA authorization at any time. To do this, you must provide a written notice of revocation to each healthcare provider that has received your authorization. The revocation will take effect when the provider receives the notice.
→ Can I limit what medical information is shared under a HIPAA authorization?
Yes, you can specify what types of medical information can be shared under your HIPAA authorization. For example, you might choose to allow your health care agent to access information about your current condition and treatment, but not your past medical history. It's important to think carefully about these limitations, as withholding certain information could potentially hinder your agent's ability to make informed decisions about your care.
→ Does a HIPAA authorization expire?
A HIPAA authorization does not typically expire unless you include an expiration date when you create it. However, if you become incapacitated, the authorization remains in effect until you die, unless you've specified a different time frame. It's recommended to review your HIPAA authorization regularly to ensure it still aligns with your wishes.
→ Can my health care agent make decisions without a HIPAA authorization?
While a health care agent can make decisions without a HIPAA authorization, having the authorization makes their job easier and more effective. Without it, they may not be able to access the information necessary to make informed decisions about your care. Therefore, it's generally recommended to include a HIPAA authorization in your health care directive.
Effective Dates
Health care directives typically become effective when you are no longer able to make or communicate your health care decisions, as determined by your physician. It's crucial to note that as long as you are capable of communicating your wishes, you continue to have the right to make your own medical decisions. Your health care directives serve as a guide for your caregivers and doctors when you can't make decisions yourself.
→ When does my health care directive become effective?
Your health care directive becomes effective once you're unable to make or communicate your own health care decisions. This determination is usually made by your doctor and is often due to a severe illness or injury that leaves you incapacitated. Until such a time, you remain in control of your own health care decisions.
→ Can I specify a different effective date for my health care directive?
Generally, a health care directive becomes effective when you're unable to make decisions for yourself. However, the document can be customized based on your preferences. For instance, you might specify that certain parts of your directive become effective under specific circumstances or after a certain period of incapacitation. It's recommended to consult with an estate planning attorney to ensure your directive meets your needs and is legally sound.
→ What happens if my doctor disagrees with my family about my capacity to make decisions?
In such cases, most health care directives specify a process for resolving these disagreements. This process often involves getting a second opinion from another doctor. If the disagreement persists, it may be necessary to have a court decide. This underscores the importance of having thorough discussions with your doctor and family about your wishes and the contents of your health care directive.
→ Can my health care agent make decisions before my directive becomes effective?
Unless specified otherwise in your directive, your health care agent generally cannot make decisions on your behalf until your directive becomes effective - that is, until you're unable to make or communicate decisions yourself. However, you can give your agent immediate authority to make health care decisions on your behalf if you choose. This flexibility can be helpful in situations where you're temporarily unable to make decisions, such as during surgery.
→ Can I make my health care directive effective immediately?
Yes, you can choose to make your health care directive effective immediately. This means your health care agent can start making health care decisions on your behalf as soon as the directive is signed and witnessed, even if you're still able to make decisions yourself. This might be a good option if you travel frequently, have a scheduled surgery, or simply want another person to handle your health care decisions.
→ Do I have to be terminally ill for my health care directive to take effect?
No, you do not need to be terminally ill for your health care directive to take effect. It becomes effective when you're unable to make or communicate your own health care decisions, regardless of the reason. This could be due to a temporary condition, like being unconscious during surgery, or a long-term issue like dementia. The key factor is your ability to understand and communicate your health care decisions.