When estate planning comes to mind for many individuals, it typically involves considerations of wills, trusts, and the transfer of assets to the succeeding generation. However, another part of estate planning doesn’t get as much attention. It concerns advanced health care planning.
- Have you considered what type of medical care and treatments you want or don’t want if you become incapacitated or terminally ill?
- Who would you trust to make health care decisions for you if you could not make decisions or communicate with the medical professionals caring for you?
If you don't have the answers to these questions in writing ahead of time, decisions may need to be made in court by a judge. The care you get may be different from your wishes or beliefs. And the person selected to make decisions for you may not know what you want or share your values.
To ensure your health care wishes are honored, you need to spell them out in appropriate legal documents commonly referred to as advance directives. You don't need to wait for later years. Every adult should have advance directives since a serious medical emergency could happen any time. An experienced estate planning attorney can provide trusted legal counsel and ensure your advanced health care directive is updated.
A living will is a legal document specifying which medical treatments you want to keep you alive if needed. You can also use a living will to express your pain management and organ donation preferences.
When considering what to put in your living will, consider your lifestyle, how you want to live, and what aligns with your beliefs and values. Here are some questions to ask when thinking about your living will:
- Would you want medical treatments that would extend your life in any situation or just particular conditions?
- Do you want a life-saving treatment only if a cure is available, or do you have a good chance of a full recovery?
- Under what circumstances would you consider your life not worth living?
- If you can’t eat solid or pureed foods, do you want to be tube-fed? If so, for how long?
- Do you want mechanical ventilation if you can’t breathe on your own? If so, for how long?
- Do you want to be revived by CPR or similar methods if your heart stops?
- What type of palliative care do you want if you are terminally ill? Do you wish to die at home or in a medical facility?
- Would you like to donate your organs and tissues for transplant purposes?
- Would you like to donate your body to science?
There are other options you can consider. An attorney experienced in estate planning and elder law can help you determine the best options for your situation.
Power of Attorney
In a health care power of attorney document, you name a person or persons who can make health care decisions on your behalf if you are unable to make decisions on your own. The name of this document varies from state to state. And how your chosen person (agent or proxy) is referred to also varies from place to place.
Even if you cover several scenarios in your living will, some situations you didn’t anticipate may arise. Having someone you trust to make decisions for you is especially important. When choosing a person to be your health care agent, select someone who understands you well enough to know what you want and that you trust to make potentially difficult decisions if necessary. It is a good idea to choose at least one backup agent in case your primary agent is unable or unwilling to act.
A Health Insurance Portability and Accountability Act form allows you to name individuals who may receive information regarding your medical condition and history from health care professionals caring for you. Your HIPAA form should include all the agents you name in your health care directives.
Creating Your Advance Directives
Some attorneys combine a living will with a power of attorney into a single advance health care directive document. This is convenient since all the information is in one place. As mentioned before, health care documents are usually part of an estate plan but may also be stand-alone.
Reviewing and Updating Your Advance Directives
Over time, your views and wishes regarding your end-of-life treatment may change. Also, you may change your mind about the person you want to make decisions for you. Talk with your estate planning attorney if you decide to update your advance health care directive. After updating your directive, ensure it replaces all existing originals and copies of the previous directive to avoid confusion later.