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What Does Advance Directive Mean?

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At certain stages of life, whether due to aging, illness, debilitation, or accidents, the capacity to manage affairs may be lost. Understanding this reality and planning before a medical crisis strikes is essential.

You can begin estate planning and have critical documents in place, such as an advance health care directive. Proper planning ensures care and treatment follow your wishes.

What Happens Without an Advance Directive?

Kevin stands at the door of Winnie’s nursing home room, tears streaming down his face. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means. Kevin had no choice but to sit back and watch his wife go through a procedure that would unnecessarily prolong her suffering.

Kevin and Winnie could have avoided this situation with an advance directive, a collection of documents, including a:

  • Living will (decisions you make about end-of-life treatment and care)
  • Health care power of attorney (proxy or surrogate)
  • HIPAA release form (medical history)

The purpose of this set of documents is to give you control over what happens when you can’t speak for yourself. If certain criteria are met, your doctors must consult with your advance directive and health care power of attorney before making decisions about life-sustaining treatment.

Situations Triggering Your Advance Directive

Usually, two doctors agree on a diagnosis when a person is terminally ill, permanently unconscious, or at the end-stage of life. Once that happens, and the individual can’t express their preferences, doctors turn to the advance directive to figure out the best course of action.

Medical staff are required to prolong life at all costs, which often leads to artificial hydration, feeding, and breathing tubes regardless of your outlook for recovery. Discussions with family members may raise more questions than answers without a written plan. Your loved ones may agonize over difficult decisions, wondering what you truly wanted.

A Living Will

A living will determines what happens to you in a medical emergency, unlike a Last Will and Testament, which determines what happens to money and possessions after death. A living will describes what health care providers can and can’t do to prolong your life or ease your pain when you can’t express decisions yourself. For example:

  • Do you want to be placed on a ventilator if you can’t breathe on your own?
  • Do you want a feeding tube and IVs set up, and if so, for how long?
  • Do you want to be an organ or tissue donor?

A Health Care Power of Attorney

A health care power of attorney may also be called a health care proxy or surrogate. It lets you choose someone to make health care decisions for you. They must follow instructions in your living will, and can make decisions not explicitly stated by your living will, based on medical history (if they are listed on a HIPAA release) and facts of the situation. In most states, default surrogate consent laws may allow family members to make treatment decisions on your behalf, but who is chosen and what they decide may not follow your wishes.

Other documents you may include in your advance directive are Do Not Resuscitate (DNR) orders and Physician Orders for Life-Sustaining Treatment (POLST), among others. You might also consider decisions in a mental health crisis.

This is a difficult subject to discuss with loved ones. But nearly 70 percent of Americans don’t have plans in place for a worst-case scenario, leaving others to choose for them. It may not align with their thoughts or beliefs about end-of-life care.

If you or a loved one would like more information about advance directives, please don’t hesitate to reach out to our estate planning law firm today. We are dedicated to preparing individuals and families for life’s challenges.

Contact our Ruston, LA office by calling us at (318) 255-1760 today and schedule an appointment to discuss how we can help you with your planning.

What is a Power of Attorney?

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An integral part of estate planning is implementing Power of Attorney (POA) documents. All states recognize powers of attorney, but rules and requirements will differ from state to state. The document gives one or more individuals the legal authority to act as your agent or proxy on your behalf. Depending on which POA you choose, the agent’s power may be limited to a particular activity, such as a real estate sale, or cover broader applications.

Permanent and Temporary Powers

A Power of Attorney may give permanent or temporary authority and be invoked immediately or be activated by a future event, such as mental or physical disability. The latter is known as a “springing” Power of Attorney. Powers of Attorney may be rescinded, but most states will require written notice of revocation to the named individual or entity.

Durable, General, and Non-Durable Powers

Some Powers of Attorney are nondurable for the sake of convenience, especially in the case of a single transaction, such as a property sale. Your agent may conduct the sale of a boat or a home described in the POA document. If you are traveling abroad or know you can’t transact this business, a nondurable power of attorney can be greatly beneficial. Once the time period or transaction is complete, the nondurable power of attorney terminates.

A general power of attorney permits the agent to deal with any matters on your behalf that state law allows. Under such an agreement, the proxy may sign checks, handle bank accounts, sell property, manage assets, and file taxes when you are unable. This POA has a wide latitude of authority. Therefore, there needs to be coordination between you and your agent to ensure your best interests are always represented.

The better-known Powers of Attorney are durable and take effect upon incapacitation. The word “durable” means the powers will remain intact even when you can no longer manage your affairs. There are two types of Durable Powers of Attorney. One handles financial matters, and the other manages medical affairs, often called a healthcare directive.

Avoiding Guardianship and Conservatorship

Without these Powers of Attorney in place, a court may need to appoint individuals to act on your behalf upon your incapacitation. Depending on your state laws, these individuals are known as conservators, guardians, or committees. This type of court intervention can be expensive, time-consuming, and is a public proceeding. Most people prefer to keep their matters private by implementing powers of attorney documents in their estate plans to avoid conservatorships.

Financial Power of Attorney

This durable power of attorney permits an agent to manage your financial and business affairs, similar to a general power of attorney. When you become incapable of managing your affairs, the agent’s responsibility is to carry out your wishes to the best of their ability. If the financial power of attorney is also a beneficiary of your estate, they must act with great care to avoid misinterpretation of intent. This document is not just for seniors. An unforeseen illness or unfortunate accident can render a healthy, younger individual incapacitated and in need of financial assistance.

Healthcare Power of Attorney (HCPA)

An HCPA is also known as a healthcare proxy and permits a designated person or agent to make healthcare and medical decisions according to your specific instructions or their best understanding of your wishes. Again, consenting to an HCPA agent for medical care decisions is not only relevant to seniors. An unforeseen illness or accident can render a healthy, younger individual incapacitated, which is why an HCPA is a crucial estate planning document.

The best way to establish powers of attorney is to locate a qualified estate planning attorney. They can help you assess which power of attorney is necessary for your unique situation. They also understand the criteria for identifying the individuals or agents to represent your interests. Delegating general and limited powers to agents can create family strain during the planning stages. An estate planning attorney is familiar with the nuances of these family issues should they arise and how to move forward for all concerned. The biggest benefit of having these matters settled before incapacitation or death is allowing a family to care or grieve for their loved one instead of being bogged down in logistics.

This article offers a summary of aspects of estate planning and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.