A health care directive, also known as an advance directive or living will, is a legal document that allows an individual to specify their preferences regarding medical treatment and end-of-life care in the event they become unable to communicate or make decisions for themselves. This is one of the three documents I highly recommended being in your estate plan.
The document typically outlines instructions for medical treatments and procedures, such as life support. It also may designate a healthcare proxy, someone who can make health care decisions on behalf of the individual if they become incapacitated. When completing a health care directive, you will be answering questionings in two different categories, I will go over those two categories later in this post. Also, in the healthcare directive, you will list your proxies. These are the people who will have the ability to make medical decisions on your behalf.
Before I jump into the healthcare I directive, I want to point out that the hospital will not follow the healthcare directive as long as you are able to talk and make decisions. It is when you become incapacited that the healthcare directive comes into play. There are no right or wrong answers in a health care directive. The purpose is to make your wishes known so if you are unable to speak for yourself, the hospital and your family can ensure your desires are followed. Let me explain the two categories and then I’ll jump into the two questions.
The Two Categories
Like I mentioned above, when filling out a health care directive, you will be answering questions in two different categories. The two categories are: “If you Become Terminally Ill or Injured,” and “If You Become Permanently Unconscious.” These two categories may seem the same, but they are very different.
If You Become Terminally Ill or Injured
Terminally ill or injured is when your doctor and another doctor both decide that you have a condition that cannot be cured and that you are likely going to die from that condition in the near future. This is not something where you could live for years, you’re typically looking at weeks, days, or maybe even hours.
If You Become Permanently Unconscious
Permanent unconsciousness is when your doctor and another doctor both agree within a reasonable degree of medical certainty that you can no longer think, feel anything, knowingly move, or even be aware of being alive. Additionally, these doctors have had to watch you long enough to make this diagnosis…and…one of these doctors has to be qualified to make the diagnosis.
The Two Questions
For each of the above categories, you will be asked the same two questions, where you will simply initial next to yes or no depending on how you want to answer. For each category you’ll be answering the same two questions. The two questions are: “Do you want to receive life sustaining treatment?” and “Do you want food or water provided through a tube or an IV?”
Life Sustaining Treatment
The first question is whether you would like to receive life sustaining treatment. This includes drugs, machines, or medical procedures that that would keep you alive, but would not cure you. Note that even if you choose not to receive life sustaining treatment, you will still receive medicines and treatments that ease your pain and keep you comfortable.
Food and Water Through a Tube or an IV.
The second question is whether you want to receive food and water through a tube or an IV. If you select yes on this question, you will be given food and water through a tube or an IV when you are no longer able to chew or swallow on your own or with someone helping you.
I understand those are some hard questions to answer and think about. We typically don’t like to think about this type of stuff, but it is imperative that you do. Not just to ensure that your wishes are followed, but also to give peace of mind to your family.
Proxies
The last section of a health care directive is the proxy sections. This is where you list out who you would want your proxies to be. Having a living will and the proxies together on the healthcare directive will help to give your proxies, likely your family, peace of mind. It’s one thing to have to make the decision to take a loved one off life support, but it’s entirely different when you’re doing that not knowing their wishes.
By having a healthcare directive, you are making your wishes know and then giving your proxy the ability to follow those wishes. This way if they must make a decision to take you off life support…or keep you on life support…they can make that decision knowing they are doing what you wanted. They won’t have the burden of thinking they are the one who killed a loved one by taking them off life support, they will have the peace of mind knowing they only did what they were instructed to do by that loved one.
I always recommend naming two healthcare proxies. A primary and a backup. That way you are covered if something happened to the primary. A good example is if you name your spouse as the primary and your son as the backup, then if your spouse predeceases you, you still have a healthcare proxy.
Limitations
In this section of the health care directive, you are able to limit the decision-making ability of your proxy. You can make it where they are only able to do what is on your healthcare directive and nothing else. Meaning they must follow your wishes regardless. You can make it where they have to follow what is on your healthcare directive and then also have the decision-making ability for items not considered on your healthcare directive. Finally, you can make it where your proxy has the final say, even if it means going against what you listed on your healthcare directive.
There are pros and cons to each of those three options and neither one is particularly right nor wrong. I have seen each of those three options selected numerous times as I’ve helped clients complete their healthcare directive.
Conclusion
Health care directives are an important part of an individual’s overall healthcare planning and can help ensure that their wishes are respected and followed, even if they are unable to communicate or make decisions at the time. The above is not legal advice. Should you need advice on drafting a health care directive contact Chris Baldwin Law by clicking HERE or by calling 334-863-4555.
Check out my article “How Healthy is Your Estate Plan?.” In this article I detail the three documents I recommend everybody have in their estate plan.
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