Making a will and/or creating a living trust are not sufficient because their main purpose is to determine what happens to your estate once you've died. To cover the eventuality that you may not be able to make your own health care decisions, you need a few more simple documents.
Experts recommend that you prepare two documents—a healthcare directive and a durable power of attorney for health care. In some states, these documents are combined in a single form that may be found on the state website by searching for "health care proxy," "advance directive," "living will" or "health care directive."
The healthcare directive defines the type of care you want or don't want, if you are unable to speak or decide for yourself. Healthcare directives may be called living wills, advance directive, medical directive, directive to physicians, declaration regarding health care, designation of health care surrogate, or patient advocate directive depending on the state you live in.
Your healthcare directive can only become effective when the following occurs:
- You are diagnosed to be close to death from a terminal condition or permanently comatose.
- You can't communicate your own wishes for your medical care orally, in writing or through gestures.
- Your written directives for your medical care are provided to the attending medical personnel.
Your healthcare directive can describe whether you want specific procedures or care such as:
- Transfusions of blood and blood products
- Cardiopulmonary resuscitation (CPR)
- Diagnostic tests
- Pain medication
- Food and water (nutrition and hydration)
It's important that you include your wishes on pain medication because most states exclude pain-relieving procedures from the definitions of life-prolonging treatments that may be withheld.
It's also important you include your wishes on whether you want food and water withheld because some states exclude nutrition and hydration from the definitions of life-prolonging treatments that may be withheld.
Your healthcare directive is a good place to indicate if you wish to donate your organs, tissue, body parts or whole body. You can specify the organs, tissues, or body parts you wish to donate and also the purposes for which they can be used. It is smart to make the arrangements in advance, particularly for the whole body, and make sure that your healthcare agent and family members know about the arrangements.
You should have a healthcare directive even if you don't name a healthcare agent. Medical personnel are required to follow your written wishes for healthcare or to find someone who will care for you as you directed, even if you don't have an agent.
Durable Power of Attorney for Health Care
The durable power of attorney appoints someone to be your health care agent. Your healthcare agent will make medical decisions for you if you can't make or communicate them yourself. The healthcare agent may be called an attorney-in-fact, healthcare proxy, patient advocate, or healthcare surrogate.
Most durable powers of attorney for health care give your healthcare agent the authority to make all healthcare decisions for you. You can place limitations on the agent's authority but experts recommend that you don't. Remember that a healthcare agent only steps in when you are no longer able to make the decisions.
You can choose your spouse, partner, relative, or close friend. You should be comfortable discussing your wishes with them. The person you choose must respect your documented wishes even if they don't agree with them. They must also be willing to assert your documented wishes with the medical establishment and family members. Don't name an agent without discussing your wishes with them and making sure that they are willing to be your healthcare agent.
In many states, the law prevents you from naming your doctor, or an employee or a hospital or nursing home, as your healthcare agent. While your agent doesn't have to live nearby, you should consider where they live. In many instances, your agent may need to spend weeks or months making sure your wishes are carried out.
Do Not Resuscitate Orders
A Do Not Resuscitate (DNR) order can be a supplement to your healthcare directives. A DNR indicates that you don't wish to receive CPR if your heart stops or you stop breathing. These are usually used by persons who are critically ill and don't want life-prolonging treatment. This document can be placed in your medical record if you are in a hospital or nursing home. You may also request that your doctor place it in your records maintained by the doctor.
These resources provide more information about healthcare directives, durable powers of attorney, and do not resuscitate orders.
Living Wills & Medical Powers of Attorney from nolo.com provides articles about how these documents work, what you can cover, choosing your health care agent, and more.
Advance Directives and Do Not Resuscitate Orders from Familydoctor.org which is provided by the American Academy of Family Physicians. This article, in Q&A's, provides an overview of advance directives and do not resuscitate orders.
Myths and Facts About Health Care Advance Directives (pdf) from the American Bar Association Commission on Law and Aging.
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