When the subject of end-of-life planning comes up, my clients generally focus on their property and how it will be disbursed after they pass away. While this is a vital element of any end-of-life plan, it is only one half of the coin. The other half is ensuring one’s wishes regarding end-of-life care are recorded and will be respected if he or she is unable to communicate those wishes.
Most people have opinions on end-of-life medical care. Some of us want to be kept alive no matter the cost, chance of recovery, or quality of life after recovery. Others may want to focus on being comfortable and preserving one’s dignity in life. Like most complex subjects, reasonable minds differ and there is no “right” approach to end-of-life care.
This becomes an issue when a person suddenly becomes unable to make decisions for themselves. Every state has enacted statutes providing for who may make medical decisions for a person who no longer can make them for themselves. If no plans were made before being incapacitated, this is usually a spouse or, if unmarried, a close family member.
The issues are:
a) is this the person you want making these decisions on your behalf;
b) does this person know your wishes regarding end-of-life care, and;
c) will they honor those wishes in making decisions for you?
Because of this uncertainty, every person should have an end-of-life plan in place before unforeseen circumstances make one unable to do so. Usually, these take the form of an advanced directive paired with a durable medical power of attorney.
Advanced Directive
An advanced directive is essentially a set of instructions given to medical professionals that outline limitations on the care they may provide when you no longer have the ability to consent. These generally address the types of care people may find objectionable, such as being kept alive on incubation machines, use of feeding tubes, and the use of life-saving techniques that dramatically reduce a person’s quality of life if successful.
Often, advanced directives are paired with a living will which goes into more detail as to the philosophical and logical reasoning behind the person’s medical care choices. Living wills are often best for those with very specific issues, such as those who may have religious objections to the use of medications derived from pork products. Whether a living will is necessary will vary from person to person.
Durable Medical Power of Attorney
A power of attorney does one thing: it allows another person to act on your behalf as your agent. He or she is authorized by the power of attorney to exercise choices, enter into contracts, and make commitments as if they were you. Generally a power of attorney is no longer effective once the principal — the person who granted the power of attorney — becomes incapacitated. A power of attorney can be limited in scope. For end-of-life planning purposes, it is best to limit the power of attorney to only those decisions related to medical care.
A durable power of attorney, in contrast, does not become ineffective once the principal is incapacitated. Often, these powers of attorney only go into effect when the principal is unable to make decisions for themselves. Using a durable power of attorney, a person can appoint a trusted confidant as their representative if they find themselves in a coma or otherwise unable to make decisions for themselves.
Often, it is wise to name several people who may act on one’s behalf in order of preference. If one names a spouse, what happens if he or she is incapacitated at the same time due to being involved in the same accident or incident? Or what if the named person does not want the responsibility? By providing a set of people rather than one, a person can ensure someone will be available to make choices on their behalf.
When used in conjunction, an advanced directive generally overrides a medical power of attorney. For example, if a person’s advanced directive prohibits using a feeding tube but the person with power of attorney asks for a feeding tube be used, medical professionals should refuse to comply. Because of this interplay, a person can effectively set the rules using an advanced directive while authorizing their agent to make decisions within those rules.
Have you made arrangements for your end-of-life healthcare? If you would like to get these plans in place, please call my office at 903-221-9180, use our Contact Us form on the website, or email me directly at matt@matthewlewislaw.com.
Note: This article was not written with any particular state law in mind. It is generalized information intended to be used exclusively for educational purposes. This is not legal advice, and no attorney-client relationship has been formed between the reader and the Law Office of Matthew C. Lewis.
