Healthcare Directives FAQ
Nearly 80% of Americans die in a hospital or other care facility. The doctors who work in these facilities are generally charged with preserving a patient's life through whatever means are available. This may or may not be what you would like in the way of treatment. Healthcare directives give you the opportunity to write out your wishes in advance and ensure some legal respect for them if ever you are unable to speak for yourself.
A living will, known in most states as a Directive to Physicians or Healthcare Directive, sets out your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed directive, he or she is under a duty either to honor its instructions or to make sure you are transferred to the care of another doctor who will.
Many people mistakenly believe that healthcare directives are used only to instruct doctors to withhold life prolonging treatments. In fact, some people want to reinforce that they would like to receive all medical treatment that is available--and a healthcare directive is the proper place to say so.
What is a durable power of attorney for healthcare? Doesn't that do the same thing as a living will?
A durable power of attorney for healthcare--called a healthcare proxy in some states--gives another person authority to make medical decisions for you if you are unable to make them for yourself. Unlike a healthcare directive, this document doesn't necessarily state what type of treatment you want to receive. You can leave those decisions to your proxy if you feel comfortable doing so. Ideally, however, the two documents will work together. For example, your healthcare directive may contain a clause appointing a proxy (sometimes called an attorney-in-fact, agent or representative) to be certain your wishes are carried out as you've directed. Or you may create two separate documents, a directive explaining the treatment you wish to receive and a durable power of attorney appointing someone to oversee your directive.
If you do not know anyone you trust to name as your healthcare proxy, it is still important to complete and finalize a healthcare directive recording your wishes. That way, your doctors will still be obligated to give you the medical care you want.
What happens if I don't have any healthcare documents?
If you have not completed either a formal document such as a healthcare directive to express your wishes, or a durable power of attorney to appoint someone to make healthcare decisions on your behalf, the doctors who attend you will use their own discretion in deciding what kind of medical care you will receive.
When a question arises about whether surgery or some other serious procedure is authorized, doctors may turn for consent to a close relative--spouse, parent or adult child. Friends and unmarried partners, although they may be most familiar with your wishes for your medical treatment, are rarely consulted, or are purposefully left out of the decision-making process.
Problems arise where partners and family members disagree about what treatment is proper. In the most complicated scenarios, these battles over medical care wind up in court, where a judge, who usually has little medical knowledge and no familiarity with you, is called upon to decide the future of your treatment. Such legal battles--which are costly, time-consuming and usually painful to those involved--are unnecessary if you have the care and foresight to use a formal document to express your wishes for your healthcare.
When does my healthcare directive take effect?
Your healthcare directive becomes effective when three things happen:
- you are diagnosed to be close to death from a terminal condition or to be permanently comatose
- you cannot communicate your own wishes for your medical care--orally, in writing or through gestures, and
- the medical personnel attending you are notified of your written directions for your medical care.
In most instances, you can ensure that your directive becomes part of your medical record when you are admitted to a hospital or other care facility. But to ensure that your wishes will be followed if your need for care arises unexpectedly or while you are out of your home state or country, it is best to give copies of your completed documents to several people.
Who should I choose as a healthcare proxy?
The person you name as your healthcare proxy should be someone you trust--and someone with whom you feel confident discussing your wishes. While your proxy need not agree with your wishes for your medical care, you should believe that he or she respects your right to get the kind of medical care you want.
The person you appoint to oversee your healthcare wishes could be a spouse or partner, relative or close friend. Keep in mind that your proxy may have to fight to assert your wishes in the face of a stubborn medical establishment--and against the wishes of family members who may be driven by their own beliefs and interests, rather than yours. If you foresee the possibility of a conflict in enforcing your wishes, be sure to choose a proxy who is strong-willed and assertive.
While you need not name someone who lives in the same state as you do, proximity should be one factor you consider. The reality is that the person you name may be called upon to spend weeks or months near your bedside, making sure medical personnel abide by your wishes for your healthcare.
You should not choose your doctor, or an employee of a hospital or nursing home where you are receiving treatment. In fact, the laws in many states prevent you from naming such a person. In a few instances, this legal constraint may frustrate your wishes. For example, you may wish to name your spouse or partner as your representative, but if he or she also works as a hospital employee, that alone may bar you from naming that person. If the laws in your state ban your first choice, you may have to name another person to serve instead.
