Understanding Living Wills and Durable Powers of Attorney for Health Care

Prepared by James H. Wilson Law Firm

The Importance of Health Care Planning

As difficult as it might be to think about, there may come a time when you’re unable to voice your medical wishes due to an illness, accident, or the effects of aging. That’s why it’s crucial to set your medical treatment preferences in writing ahead of time. By doing so, and appointing a trusted individual to oversee your care, you can ensure your health care decisions don’t fall into the hands of those who may not be fully aware of your desires or best interests.

Key Health Care Directives

To clearly communicate your health care preferences, you should consider creating two key documents: a living will and a durable power of attorney for health care. Some states offer a unified document known as an advance directive that incorporates elements of both. Such health care directives make it possible for you to articulate your wishes should you become unable to communicate.

The Function of Living Wills

A living will serves as a written declaration of the medical care you wish to receive, or avoid, should you become incapacitated. This document is entirely separate from a last will and testament or living trust, which deal with the distribution of assets upon death. Living wills can cover a range of desires, from broad to very specific, about your health care treatment.

The Role of Durable Powers of Attorney for Health Care

Alongside a living will, you should also create a durable power of attorney for health care. This document allows you to nominate a health care agent—someone you trust—to make medical decisions on your behalf. This agent will be responsible for ensuring that the medical care you specified is adhered to by health care providers.

Eligibility for Creating Health Care Documents

To establish a valid health care directive, you must be a legal adult—typically 18 years or older—and possess the mental capacity to understand the documents’ contents and implications.

Activation of Your Health Care Documents

Your health care documents become active when your physician determines that you’re incapable of making informed health care decisions, signified by an inability to comprehend or communicate your medical choices. In some cases, you may even opt to grant your health care agent immediate authority over your medical decisions, removing the requirement for a doctor’s assessment.

While empowering your health care agent right away, you retain control over your treatment decisions as long as you’re capable. Should you become incapable, your agent is obligated to act in your best interests and follow any instructions you’ve laid out.

Conclusion of Your Health Care Documents’ Validity

Your health care preferences remain in force until your passing unless you decide to revoke the documents or a court intervenes, which is exceedingly rare. Here are specific scenarios where your health care documents may no longer be effective:

• You revoke the document, ensuring that your health care providers and the agent are informed.
• A court voids your document, potentially due to capacity issues or improper completion, but typically any clear, sound-minded directives you’ve provided will still be followed.
• A court revokes your agent’s authority due to misconduct, leading to an alternate agent stepping in or the appointment of a conservator.
• Divorce, which might invalidate your spouse’s status as your agent, necessitating a new document appointing another person.
• Upon death, your health care documents usually become unnecessary, except in certain states where limited post-mortem directives may persist for body disposition matters.

For guidance on living wills and durable powers of attorney for health care, please contact James H. Wilson Law Firm at 804.740.6464. We are here to help you ensure your health care wishes are respected and upheld.