Trust & Estates: Planning for Incapacity and End-of-Life Care
As part of your estate planning, your attorney may have prepared a Durable Power of Attorney which allows your designated agent to act on your behalf. A Durable Power of Attorney can either become effective immediately, or later, if and when you become unable to make your own decisions. In many cases, you will have two Durable Powers of Attorney - one for your property and one for your healthcare. This allows you to appoint an appropriate agent for each area of your affairs. Having a Durable Power of Attorney for Healthcare, however, may not be enough to ensure that your wishes for treatment affecting the end of your life will be honored.
In order to ensure that your wishes for end of life care are implemented, you will require an Advanced Directive for Health Care. Through this document, you instruct your attending physician whether or not you wish to be given life-sustaining treatments and artificially administered nutrition and hydration in the event you have a terminal condition, become persistently unconscious or have an end-stage condition. An Advanced Directive for Health Care is sometimes referred to as a living will. The Advance Directive will go into effect when your attending physician and another physician determine that you are no longer able to make decisions regarding your medical treatment. To be effective, you must specifically initial each choice of care that you include in the Advanced Directive.
If you have been admitted to a hospital, particularly for surgery, you may have been asked if you wished to sign a Do-Not-Resuscitate Consent (DNR). Through the DNR, you state that you do not consent to the administration of CPR in the event your heart stops beating or you stop breathing. It addresses only cardiopulmonary resuscitation in the event of a cardiac or respiratory arrest. It does not cover any other life-sustaining treatments or the administration of nutrition and hydration. It is not a substitute for an Advanced Directive.
An Advanced Directive may also include a Health Care Proxy. This provision allows you to appoint an agent, such as your spouse or adult child, to make health care decisions for you in the event you are unable to make those decisions. Standing alone, however, a Health Care Proxy cannot make end of life decisions for you unless you have also executed the Living Will section of an Advanced Directive.
A Health Care Proxy included in an Advanced Directive differs from a Durable Power of Attorney for Healthcare. First, the Health Care Proxy only becomes effective when you are unable to make decisions for yourself. A Durable Power of Attorney for Healthcare, however, can be made effective either upon execution, or when you are unable to make decisions for yourself, whichever you prefer. Although the power to make anatomical gifts at your death may be included in both a Health Care Proxy and a Durable Power of Attorney for Healthcare, the Power of Attorney may include much broader authority. It may, for example, authorize your agent to make arrangements for admission to a hospital, hospice, or nursing home, have access to your healthcare records, and give or withhold consent to medical procedures, tests or treatment including surgery.
The bottom line? You need an Advanced Directive for Health Care and a Durable Power of Attorney for Healthcare. Because both of these documents have strict execution and witness requirements, we recommend that they be prepared originally by your counsel in connection with estate planning, and updated periodically.
Rebecca M. Fowler