Advance medical directives refer to legal documents that give instructions or wishes of an individual in the event that they are no longer able to “speak for themselves.” Depending on the state you live in, advance medical directives may consist of one or more of three legal documents: a living will, a health care proxy and/or power of attorney(s). The US Supreme Court itself has declared that you have the constitutional right to decide if your life should be artificially sustained in any manner.
Advance medical directives began to be established in the 1960s and the legal field has worked hard on improving these directives throughout the decades. The first living will was not legal until 1976 when sanctioned by the State of California. It wasn’t until 1992 when all 50 states had finally passed some type of advance medical directive legislation that made these documents legally binding.
When might you need advance medical directives? You might need them if you find yourself in a severe medcl situation. Examples include a coma or stroke, brain injury due to an accident or illness, Alzheimer’s or another form of dementia, and more. Advance medical directives are very important documents that should be drafted by an experienced attorney who is well versed in the law involving advance medical directives.
That being said, let’s take a closer look at each advance medical directive individually. Your attorney will be able to tell you which documents are required in your state.
A living will is a legal document that states an individual’s desire for medical treatment, or lack thereof. For example, “if I suffer an incurable, irreversible illness, disease or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.” A statement such as this would direct a doctor or hospital not to treat the individual to save their life in the case of a terminal illness or injury.
Any type of resuscitation, artificial means of feeding, breathing or hydration, by a doctor or hospital would be illegal. Of course, your living will may direct the exact opposite and ensure that your life is prolonged as long as possible in the same events. In some cases, narrow terminology can raise unexpected issues with particular medical conditions. The terminology will be important which is why having your living will created by an experienced attorney is highly recommended.
Health Care Proxy
A health care proxy is similar to a living will. It is sometimes referred to as a “durable power of attorney for health care,” and it is a legal document that should be drawn up by an attorney who is specifically experienced in advance medical directives. Wording in these documents is crucial.
The main difference between a living will and a health care proxy are that instead of explicitly stating your wishes in the living will, you instead assign an individual to make those decisions for you in the health care proxy, if you should ever find yourself in a medical situation where you could not make those decisions for yourself.
You should choose your health care proxy carefully, of course. It should be someone who you can completely trust to follow through with your wishes in regards to artificial life support, or any medical action that would prolong life in the case of a terminal illness or brain death.
Having a health care proxy will appoint this individual (and this individual only) as able to speak for you in regards to your medical wishes. Without a health care proxy or a living will, your immediate next of kin would be responsible for making these decisions: a spouse, a child, a parent. Often a loved one can make irrational or selfish decisions based on not wanting to lose you. If next of kin is not available, the state will make this decision for you. Having a health care proxy will avoid this unfortunate situation.
Power of Attorney
Sometimes referred to as a “durable power of attorney,” or DPOA, this legal document gives a named individual the right to a specific power, or set of rights. For example, a power of attorney can be assigned for legal decisions, another for medical decisions, and yet another for financial decisions.
A power of attorney assigned to handle financial decisions would have the ability to write checks and sign in your behalf, pay bills while you are incapacitated, open credit or banking accounts, and more; essentially any rights that you yourself would have are passed to this person. A DPOA for medical decisions, also called a health care surrogate, would be able to make all life-sustaining medical decisions for you.
Again, the individual you choose should be decided carefully. Make sure it is someone you completely trust to act in your best interests and the best interests of your family. Speak to this person in length and detail about your personal wishes and desires in all possible cases and make sure they are mentally prepared to handle this task well if it becomes necessary.
With any of the advance medical directives (living will, health care proxy, or power of attorney), you retain complete control of your own decisions until you are unable to make these decisions on your own due to a mental or physical disability. In other words, the documents only become enforceable upon your incapacitation.
Hundreds of legal professionals, state courts and the US Supreme Court have spent decades forming advance medical directives that provide you with the means of speaking your own wishes even at the time when you are incapable of doing so. Don’t lose your constitutional right to make these decisions for yourself. Speak with a qualified legal professional today to have your advance medical directives established now. As with most things in life, “hope for the best, but prepare for the worst,” is apropos.
Updated: March 28, 2014