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Law Centers > Encyclopedia > Wills & Estate Planning > Healthcare Directives and Powers of Attorney

Healthcare Directives FAQ

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It's smart to make legal documents setting out your wishes for healthcare should you ever be unable to speak for yourself. Here's some information to get you started.

What's Below:

Nearly 80% of Americans die in a hospital or other care facility. The doctors who work in these facilities are generally charged with preserving a patient's life through whatever means are available. This may or may not be what you would like in the way of treatment. Healthcare directives give you the opportunity to write out your wishes in advance and ensure some legal respect for them if ever you are unable to speak for yourself.

What is a living will?

A living will, known in most states as a Directive to Physicians or Healthcare Directive, sets out your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed directive, he or she is under a duty either to honor its instructions or to make sure you are transferred to the care of another doctor who will.

Many people mistakenly believe that healthcare directives are used only to instruct doctors to withhold life prolonging treatments. In fact, some people want to reinforce that they would like to receive all medical treatment that is available -- and a healthcare directive is the proper place to say so.

What is a durable power of attorney for healthcare? Doesn't that do the same thing as a living will?

A durable power of attorney for healthcare -- called a healthcare proxy in some states -- gives another person authority to make medical decisions for you if you are unable to make them for yourself. Unlike a healthcare directive, this document doesn't necessarily state what type of treatment you want to receive. You can leave those decisions to your proxy if you feel comfortable doing so. Ideally, however, the two documents will work together. For example, your healthcare directive may contain a clause appointing a proxy (sometimes called an attorney-in-fact, agent or representative) to be certain your wishes are carried out as you've directed. Or you may create two separate documents, a directive explaining the treatment you wish to receive and a durable power of attorney appointing someone to oversee your directive.

If you do not know anyone you trust to name as your healthcare proxy, it is still important to complete and finalize a healthcare directive recording your wishes. That way, your doctors will still be obligated to give you the medical care you want.

What happens if I don't have any healthcare documents?

If you have not completed either a formal document such as a healthcare directive to express your wishes, or a durable power of attorney to appoint someone to make healthcare decisions on your behalf, the doctors who attend you will use their own discretion in deciding what kind of medical care you will receive.

When a question arises about whether surgery or some other serious procedure is authorized, doctors may turn for consent to a close relative -- spouse, parent or adult child. Friends and unmarried partners, although they may be most familiar with your wishes for your medical treatment, are rarely consulted, or are purposefully left out of the decision-making process.

Problems arise where partners and family members disagree about what treatment is proper. In the most complicated scenarios, these battles over medical care wind up in court, where a judge, who usually has little medical knowledge and no familiarity with you, is called upon to decide the future of your treatment. Such legal battles -- which are costly, time-consuming and usually painful to those involved -- are unnecessary if you have the care and foresight to use a formal document to express your wishes for your healthcare.

When does my healthcare directive take effect?

Your healthcare directive becomes effective when three things happen:

  • you are diagnosed to be close to death from a terminal condition or to be permanently comatose
  • you cannot communicate your own wishes for your medical care -- orally, in writing or through gestures, and
  • the medical personnel attending you are notified of your written directions for your medical care.

In most instances, you can ensure that your directive becomes part of your medical record when you are admitted to a hospital or other care facility. But to ensure that your wishes will be followed if your need for care arises unexpectedly or while you are out of your home state or country, it is best to give copies of your completed documents to several people, including your regular physician, your healthcare proxy and another trusted friend.

Who should I choose as a healthcare proxy?

The person you name as your healthcare proxy should be someone you trust -- and someone with whom you feel confident discussing your wishes. While your proxy need not agree with your wishes for your medical care, you should believe that he or she respects your right to get the kind of medical care you want.

The person you appoint to oversee your healthcare wishes could be a spouse or partner, relative or close friend. Keep in mind that your proxy may have to fight to assert your wishes in the face of a stubborn medical establishment -- and against the wishes of family members who may be driven by their own beliefs and interests, rather than yours. If you foresee the possibility of a conflict in enforcing your wishes, be sure to choose a proxy who is strong-willed and assertive.

While you need not name someone who lives in the same state as you do, proximity should be one factor you consider. The reality is that the person you name may be called upon to spend weeks or months near your bedside, making sure medical personnel abide by your wishes for your healthcare.

You should not choose your doctor, or an employee of a hospital or nursing home where you are receiving treatment. In fact, the laws in many states prevent you from naming such a person. In a few instances, this legal constraint may frustrate your wishes. For example, you may wish to name your spouse or partner as your representative, but if he or she also works as a hospital employee, that alone may bar you from naming that person. If the law in your state bans your first choice, you will have to name another person to serve.

What if I really don't know anyone I trust to supervise my medical care if I become unable to on my own?

Naming a healthcare proxy is an optional part of completing your healthcare directive. It is better not to name anyone than to name someone who is not comfortable with the directions you leave -- or who is not likely to assert your wishes strongly.

Medical personnel are still technically bound to follow your written wishes for your healthcare -- or to find someone who will care for you in the way you have directed. It is far better to put your wishes for final healthcare in writing than to let the lack of a representative stand in the way.

What types of medical care should I consider when completing my healthcare documents?

Technological advances mean that currently unfathomable procedures and treatments will become available and treatments that are now common will become obsolete. Also, the treatments that are available vary drastically with region, depending on the sophistication and funding levels of local medical facilities.

While putting together your healthcare directive, the best that you can do is to become familiar with the kinds of medical procedures that are most commonly administered to patients who are terminally ill or permanently comatose. Those most commonly administered include:

  • blood and blood products
  • cardio-pulmonary resuscitation (CPR)
  • diagnostic tests
  • dialysis
  • drugs
  • respirators, and
  • surgery.

Can I provide instructions in my healthcare documents about whether I want pain medication, or food and water?

The laws of most states assume that people want relief from pain and discomfort and specifically exclude pain-relieving procedures from definitions of life-prolonging treatments that may be withheld. Some states also exclude food and water (commonly called nutrition and hydration) from their definitions of life-prolonging treatments. But there is some controversy about whether providing food and water, or drugs to make a person comfortable, will also have the effect of prolonging life. Some people are so adamant about not having their lives prolonged when they are comatose or likely to die soon that they choose to direct that all food, water and pain relief be withheld, even if the doctor thinks those procedures are necessary. Under the U.S. Constitution, you are allowed to leave these instructions even if your state's law is restrictive; your doctors are legally bound to follow your wishes.

On the other hand, some people feel concerned about how much pain or discomfort they may experience during a final illness; these people are willing to have their lives prolonged rather than face the possibility that discomfort or pain would go untreated. Obviously, it's a very personal choice; you're free to leave the instructions that feel right for you.

How can I be sure my healthcare documents are legal?

There are a few requirements you must meet to make a valid healthcare directive. In most states, you must be 18 years old, though a few states allow parents to make healthcare directives for their minor children. All states require that the person making a healthcare directive be able to understand what the document means, what it contains and how it works.

Also, every state requires that you sign your documents. If you are physically unable to sign them yourself, you can direct another person to sign them for you.

You must sign your documents, or have them signed for you, in the presence of witnesses or a notary public -- sometimes both, depending on your state's law. The purpose of this additional formality is so that there is at least one other person who can confirm that you were of sound mind and of legal age when you made the documents.

Where can I get a healthcare directive -- and who can help complete it?

Many people first realize the need for healthcare documents when they're being admitted to a hospital. But hospital admission time is probably not the best time to learn about your options in directing healthcare or to reflect on your wishes. It's better to get information and complete your documents when you're under less stress.

Local senior centers may be good resources for help. Many of them have trained healthcare staff on hand who will be willing to discuss your healthcare options. The patient representative at a local hospital may also be a good person to contact for help. And if you have a regular physician, you can discuss your concerns with him or her.

Local special interest groups and clinics may provide help in obtaining and filling out healthcare directives -- particularly organizations set up to meet the needs of the severely ill such as AIDS groups or cancer organizations. Check your telephone book for a local listing -- or call one of the group's hotlines for more information or a possible referral.

There are also a number of seminars offered to help people with their healthcare documents. Beware of groups that offer such seminars for a hefty fee, however. Hospitals and senior centers often provide them free of charge.


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