When a medical emergency or some type of serious disability or incapacity strikes, it may be too late to make important decisions about your medical care. Though none of us wants to contemplate a time when we may be unconscious in a hospital bed or incapacitated by dementia, the alternative is far worse. Failing to create contingencies for that type of situation means that if the worst happens, you may have no say in how your care is administered or who makes critical medical decisions.
In addition to the risk that decisions made on your behalf will not be the ones you would have made, leaving these questions unanswered can put a tremendous strain on family. Decision-making may fall to someone who feels unqualified to take on that responsibility simply because he or she is your legal next of kin. Lack of direction may also trigger conflict among family members if, for example, you have two children and they cannot agree on the best course of treatment.
Preparation for possible future incapacity may involve a healthcare directive (sometimes referred to as a living will) and a healthcare power of attorney (commonly described as a healthcare proxy).
Advance Healthcare Directives
A healthcare directive is a legal document that allows you to make certain medical decisions in advance. One core issue addressed in healthcare directives is whether or not medical providers should take extraordinary measures to ensure that the patient remains alive. An advance directive may provide guidelines advising physicians as to the circumstances under which the patient doesn’t want life-prolonging care.
The advance directive may also designate a healthcare proxy. The degree of discretion will depend on the terms of the document. The designated person may be limited to ensuring that the advance directive is followed, or may be charged with making decisions regarding issues that are not addressed in the advance healthcare directive.
Healthcare Power of Attorney
While a healthcare proxy may be designated in a living will, a healthcare power of attorney may also be executed as a separate document, either in combination with or in place of an advance directive. If a healthcare proxy is designated and there is no advance directive, then the proxy will make decisions on your behalf when you are unable to make those decisions yourself.
Choosing a Healthcare Proxy
When choosing the person you’ll grant healthcare power of attorney, think carefully about the decisions that person will be called upon to make. The person closest to you may seem the obvious choice, but may not be the best qualified person for the job.
For example, if you feel strongly about terminating life-extending treatment in the event of a terminal illness, this may disqualify certain family members. If you believe that making that decision will be too emotionally taxing for your daughter, or your sister has religious convictions that conflict with your preferred course of action, you’ll want to look further for the right healthcare representative.
Talking with Your Healthcare Proxy
It’s important to ensure that your healthcare proxy is prepared to take on the responsibility associated with the authority you’re granting, and that he or she understands and is willing to comply with your wishes. Before making a designation, you should have a serious conversation with the person you want to appoint. You can’t afford to be delicate or tiptoe around the issues—this person may well be making life and death decisions for you, and a frank exchange is critical to ensuring that your interests are fully protected.
Preparing Healthcare Directives and Powers of Attorney
Healthcare directives are a component of a comprehensive estate plan, along with a financial power of attorney, guardianship arrangements if you have minor children, and other measures necessary to protect you and your loved ones in the event of death or disability. In most cases, the need for this type of preparation arises unexpectedly, meaning that you must be prepared in advance.
If you already have a will or living trust and haven’t addressed healthcare issues, or if you haven’t yet made any arrangements, contact an estate or elder law attorney as soon as possible to learn more about making provision for your future medical care.