A health care directive is an instructional document providing your primary care physician, your family and anyone else you list the information necessary should you become incapacitated. This document outlines what you do want to happen medically, as well as what do you do not want to happen. This differs from a medical power of attorney that appoints an individual to speak on your behalf, as well as make medical decisions for you, should you become incapacitated. This instructional document provides protection from any decisions you do not want made on your behalf.
When creating a will (as well as creating a trust, if applicable), write out your healthcare directive as part of your estate planning process. Estate planning goes beyond that of assignment of assets and properties following your passing, but it is also necessary to maintain your well being until your passing. Without this document, or set of documents depending on how many components you include, your estate plan is incomplete because your health care decisions are not being addressed.
Be aware that there are two types of directives and each should be handled as either separate or combine parts the estate plan. The living will is the first type of healthcare directive, and is an instrument created providing information to your primary care physician, or other health care provider, with your medical wishes. Laws vary from state to state with regard to how to handle a living will, so be sure to confer with your estate planning attorney about how to incorporate this legally into your estate plan. Remember, though, that this document merely provides healthcare providers with instructions regarding your care when you are unable to make decisions or give direction.
The second type of healthcare directive is the assignment of a medical power of attorney. During the creation of a medical power of attorney document, you must name an “agent.” The agent is the person who signs the medical power of attorney document stating they are willing and able to sign documents, speak to health care providers, make medical decisions and seek second opinions when you are incapacitated. Like living wills, laws vary from state to state regarding the rights and responsibilities regarding the medical power of attorney. Before assigning an agent, be sure to hold a conversation with then to ensure they are able to handle this responsibility and are willing to do so.
Stephen A. Mendel, Estate Planning Attorney
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