As we age, there is a risk that our mental faculties will decline substantially or we’ll suffer a sudden, unexpected health issue that leaves us incapacitated and unable to make important healthcare decisions. I’ve confronted this harsh reality with members of my own family. My father developed Alzheimer’s and got to the point where he needed someone to step in and making important decisions on his behalf.
Another tragic example is the mental decline of comedian Tim Conway, famous for his role on “The Carol Burnett Show.” Conway was diagnosed with dementia and is “almost entirely unresponsive,” according to MSN News. It does not appear that a health care directive was in place, which has spurred a rancorous legal battle between Conway’s wife and his daughter about the quality of his medical care.
These unfortunate situations highlight the importance of having a detailed health care directive in place. You can have a health care directive drafted and incorporated into your estate plan.
Health Care Power of Attorney
An example of a viable directive is a “Health Care Power of Attorney.” This is a legal document that empowers you to select a spouse, family member or trusted friend to be the decision-maker regarding health care issues, in case you are unable to make medical decisions. This includes the decision where you will receive your care (at home, nursing home, hospital, etc.). The person you designate as the decision maker will be deemed your “agent.” Keep in mind, a proper agent must be at least 18 years of age and should be someone you (i) trust and (ii) is capable of handling the responsibilities associated with being your health care agent.
A health care power of attorney pertains to health care matters only and allows you to specify in writing the types of care you do, and do not, want to receive when you cannot make those decisions independently. This specification has the effect of limiting the discretion or powers of your agent regarding the types of care that are expressly covered in the legal document. It also gives clear instructions to health care providers about the type of care you want to receive.
It is important to remember that a health care power of attorney only takes effect if you cannot make your own health care decisions. In addition, you have the power to change your choices regarding agent or instructions at any time.
Check out this video of Bobby discussing strategies for disability planning:
In addition to a health care power of attorney, you can also incorporate a living will in your estate plan. A living will is more limited than a health care power of attorney. It basically describes your choices for medical treatment for when you reach end of life. For example, if you wind up in a persistent vegetative state, do you want to be kept alive artificially? A living will that address this important, sensitive question.
Generally, a living will does not appoint an agent and does not grant discretion for choices independent of those identified in the document. A living will generally takes effect only when you are terminally ill and in need of life-sustaining medical treatment. It states your wishes for the kind of medical care you want should you become unable to state your wishes. Like a health care power of attorney, a living will may be revoked at any time.
Speak to an Experienced Trust and Estate Attorney
Drafting a health care power of attorney and/or living will can be complicated, since there are a myriad of legal requirements that must be met to ensure these documents are legally valid and enforceable. To ensure your health care documents are valid and sufficiently detailed, contact InSight Law today.