How many of us have items on our “To Do” lists, such as: “Do a new Will;” “Do a Health Care Advance Directive,” or “Do a Living Will?” Whenever we talk with clients about estate planning, we always emphasize one of the most important documents to execute is an Advance Directive, also known in other states as a Health Care Proxy, and/or a Living Will, by which you authorize others to make health care decisions for you, if you cannot, and to express your end-of-life care wishes. Does everyone need them? Yes, because none of us knows when a disability might strike us, either temporarily or permanently.
An Advance Directive is a two part document comprising (1) a Durable Power of Attorney for Health Care, in which you (the “principal”) appoint an agent to handle medical decisions should you be incapacitated or unable to communicate your wishes, and (2) a “Living Will,” by which you authorize two physicians or a physician and nurse practitioner to make end-of-life decisions. See the standard form and an informational brochure at www.healthynh.com.
The Durable Power of Attorney for Health Care does not kick in unless a physician determines that you do not have the capacity to make health care decisions or to communicate. Once the Durable Power of Attorney for Health Care has been activated, the agent takes over and makes decisions that you have authorized the agent to make.
Why is it so important to give someone this authority? The general rule is that physicians and nurses must treat unless told otherwise. There may be situations in which you would not want to be kept alive. An agent, if authorized, may agree to a “Do Not Resuscitate” Order. If the patient is near death or in a persistent vegetative state, an agent, if authorized, may decline artificial feeding and hydration, can make decisions not to start medical treatment or, if it has been started, to discontinue it. We explain to our clients that the agent will have all of the powers that the client has to make medical decisions, including continuing care, if that is appropriate.
The “Living Will” is a separate part of the Advance Directive. It allows you to authorize two physicians, or one physician and a nurse practitioner, to make end-of-life decisions for you. Some of our clients like having this option; it is like an additional backup, in case the agents they name cannot make decisions for them. Other clients decline to execute the Living Will, preferring instead to leave the decisions on their health care to the agents they appoint. Either choice is fine, but taking steps to execute these documents is essential.