After experiencing the pandemic-related uncertainty of the past year, there is greater awareness that incapacity from disease or injury is not a hypothetical. It’s reality, and there are tasks that must be done, as explained in a recent article entitled “Now Is the Time to Protect Your Health Care Decision-Making Rights” from Kiplinger.
You may have a fundamental right to make your own decisions regarding healthcare, but without planning and documenting your wishes, your right may evaporate in a heartbeat. Failing to have your healthcare wishes documented properly also leaves your family in the terrible position of having to guess what you want, and even go to court to settle a dispute between family members.
An estate planning attorney works with clients to plan how their assets will be distributed after they die (using a will and trusts, among other tools). However, they also help clients prepare for incapacity. Both are equally important. There are three basic solutions used in most states, although each state has its own specific rules, so to avoid uncertainty you will want to work with an estate planning attorney from your geographic area.
A Living Will addresses what you want to happen, if you are in an end-stage medical condition or permanently unconscious with no hope of becoming conscious. The Living Will, sometimes called a Directive to Physicians, can serve as an advance written directive for the type of treatment you want to have, or what treatments you do not want to have. If you are unable to communicate your wishes, this document conveys them in a clear and enforceable manner.
A Power of Attorney for Health Care works differently than a Living Will. You appoint one or more agents to make health care decisions for you if you become incapacitated. They use their personal knowledge of you and what you would want to occur, if you were able to speak for yourself. They act on your behalf.
If you have not signed a Power of Attorney for Health Care or a Living Will before becoming incapacitated, there are state-specific Health Care Representative Laws that authorize certain family members to step forward to act as your health care representative and make health care decisions for you. This is the last and worst option, and often results in uncertainty, especially about end-of-life decisions. It is much better for you and your family to have a plan and the proper documents. First, the state decides who will make healthcare decisions on your behalf, based on the law. If more than one person is named and the family cannot come to an agreement as to what your care should be, they may end up in court. If you have an even number of children, they could come to a tie. If you have an odd number of children, they could end up estranged because of different opinions for your care, or withdrawal of care.
Create a plan for your healthcare when you are creating or updating your estate plan. It will give you the peace of mind that, even in the worst of situations, your loved ones will know what you wanted to occur clearly and be able to go forward in following your wishes.
Reference: Kiplinger (April 29, 2021) “Now Is the Time to Protect Your Health Care Decision-Making Rights”