Documents Needed For Estate Planning: Advance Health Care Directive, or The Living Will
Q: What is a Health Care Directive?
A: An Advance Health Care Directive, also known as a Living Will, is a document that pertains to all things medical.
There are many different Health Care Directives, but the most common one covers three different topics. First, it nominates a third party to act on your behalf should you become incapacitated and thus no longer able to make decisions regarding your medical care. This nominated person, called “Agent for health care decisions,” should always have a backup in case he or she is unable or unwilling to perform.
For example, I will create my directive now, nominating my mom as the first Agent. If my mom predeceases me, or is simply traveling at the time I end up in a hospital needing her help, my sister, whom I’ve listed as my mom’s backup, will take my mom’s place.
Second purpose of the Health Care Directive is to give me a chance to state my end of life and types of care wishes. If I have an opinion on life support (DNR) cremation or burial, religious preferences, and organ donation, I’d write them down. If I don’t have an opinion on these matters, I can simply leave it up to my Agent to decide.
Yes, these are morbid topics and almost nobody likes to think about them (but remember Harold and Maude?) However, making a decision in advance and writing it down will help the person you’ve nominated to act as your Agent tremendously in that they wouldn’t have to make those difficult decisions on your behalf. Also, making these decisions for them will protect them from family members who may have different opinions.
The final purpose of the Health Care Directive is to provide the language that HIPAA requires to release your confidential medical information to the person acting as your Agent for Health Care Decisions. Without this language and this Health Care Directive, your family members would have a very difficult time dealing with your medical care providers.
Q: When does it work?
A: An Advance Health Care Directive is similar to a Durable Power of Attorney in that it is executed by a competent person now, but does not become “active” until said person actually loses his or her capacity.
The Directive stops being active when the person either regains capacity, or passes away.
Q: I filled one out before a surgery. Is it still valid?
A: There is usually nothing in the Health Care Directive itself that makes it automatically invalid. However, some Directives may be limited to a particular purpose or procedure, so read yours carefully to make sure that it covers general situations and would apply no matter what happened.
Q: Can I update it? If so, how often should I update it?
Yes, Health Care Directives can be updated so long as you have the mental capacity to do so. The older the Directive is, the higher the likelihood that the medical care providers will not feel comfortable relying onto it. If it’s old, there’s also a possibility that it will not have the requisite statutory language, as laws do change from time to time.
In general, I recommend my clients update their Directives no less than once every five to ten years, or more frequently if their wishes change.
Q: I’m married. Do I still need an Advance Health Care Directive?
A: If you are married, your need for the Directive is probably not as urgent as a single person because your spouse should have access to your confidential medical information.
However, the second purpose, stating your end of life and types of care wishes, isn’t affected by your marital status, and you should write those wishes down to help your spouse just like you’d help out anyone else acting on your behalf.
Finally, should something happen to your spouse and you simultaneously, you should nominate a backup.
In short, even if you are married, I strongly recommend you still get an Advance Health Care Directive.
Q: Can I have multiple directives?
Theoretically, there’s no law prohibiting you from having multiple directives. Practically however, you should have as few as possible, to avoid potential conflict between them. Most conflicts in this arena have to be resolved in court, which is unpleasant, time-consuming, and expensive.
If you have multiple directives and are relying on all of them being valid, be careful – many directives will actually say that they revoke, or invalidate, all other directives. The best course of action of course is to make one Directive that accurately states all of your wishes in one place.
Remember, this is serious stuff and I'm happy to help, or just answer any questions you have.
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