Advance Directives

In general, the term “Advance Directives” refers to a set of legal documents that allows you to express your wishes about financial  decision-making and health care decision-making  when you no longer have the capacity to convey such desires. 

Typically, Advance Directives include a Durable Power of Attorney Instrument, a Living Will, the appointment of a Health Care Agent, and the designation of a Personal Representative in the event such a request is made necessary by a Probate Court. Advance Directives are not just for the elderly; anyone who desires to direct the management of their financial affairs and their medical care in the future should have a comprehensive set of Advance Directives.

There are many types of documents that fall under the rubric of “Advance Directives”. A few of them are listed below:

• Living Will
• Power of Attorney for Health care
• Power of Attorney for financial purposes
• Living Trust
• Last Will
• Do Not Resuscitate Form (DNR)

A Durable Power of Attorney  is a document  that grants authority to a third party to make legal and/or financial decisions on behalf of a granting party in the event of mental incapacity. 

The powers granted can be broad or limited in scope. Some areas of authority that can be granted under a Durable Power of Attorney include finances, insurance policies, government benefits, estate plans, retirement plans, and business interests. 

Advance Directives by a Durable Power of Attorney  are generally inexpensive, easy to implement, and should be considered essential estate planning tools for all individuals, regardless of age.

A DNR is a Do Not Resuscitate Order can be issued if you or your loved one suffers from a medical calamity and medical personnel are unable to revive you. This kind of Advance Directive can be generated in association with a doctor and can be included in your medical records.

As legal professionals, we would always suggest you have at least two different people to handle your financial and health matters, respectively, as providing an Advance Directive to one person for both tasks presents obvious conflicts of interest.

It is crucial to understand that an Advance Directive and a Living Will overlap. 

Firstly, a  Living Will is a type of Advance Directive. 

Secondly, laws governing legal orders such as a Living Will and an Advance Directive vary slightly from state to state.  For example, some states allow verbal Advance Directives, while some do not. 

Finally, even within a given state, there is no set template for what must be included in a Living Will or Advance Directive. Either one may be wide-ranging and comprehensive or limited to select circumstances.

It is a good idea to review either an Advance Directive or  Living Will periodically as your health and financial circumstances change. Updating either document is also crucial if you have moved recently. There are different sets of laws and regulations as you change countries and states. You should also review these documents if you make other significant changes in your life. These include getting married or divorced or if your Healthcare Proxy is unable to continue serving.

Keep the originals in an accessible place and give copies to your doctors, Healthcare Proxy, and attorney. Communicate with your family members and close friends about your wishes. It is a good idea to carry a copy when you are traveling. You may also wish to carry a small card in your wallet, which states that you have a  Living Will or Advance Directive. This card should name your Healthcare Proxy and indicate where your document can be found in your home.

Even younger generations should consider setting up either an Advance Directive or  a Living Will. Preparing these documents will eliminate any disagreements about resuscitation, organ, and tissue donation.

In addition to the  Living Will, one can select a  Healthcare Proxy to grant a third party the power to make decisions  if  the individual is incapable of making those choices. Some states call this a  “Healthcare Power of Attorney”. 

A Living Will  covers many medical decisions, but a  Healthcare Proxy can consult with a doctor on other issues that may arise. When facing the loss of a loved one, families often disagree over treatment, so having a  Healthcare Proxy reduces friction over one’s final wishes. One should discuss wishes with the proxy before naming this person and be sure the proxy is willing to follow through with their desires.

Estate Planning and an Advance Directive can give your older family member or friend the peace of knowing that their loved ones will be cared for. It allows them  several avenues of control, such as:

• Maintain control over their property while they still have the opportunity. 
• Make their wishes clear on the sort of care they want to receive, and choose someone to make  other health care and financial decisions in the event that they become unable to give directions. 
• Provide for their loved ones after their passing. 
• Ease the burden of decision-making on their caregivers. 

You may want to encourage your loved one to prepare the Advance Directives while he or she still has the ability to do so. 

The person your loved one picks to receive power of attorney for Healthcare will be allowed to:

•  Enforce his or her health care wishes in court.
•  Hire and fire doctors and medical workers who are handling treatments
• Access his or her medical records
•  Have visitation rights

     Likewise, by way of Power of Attorney for Finances, a person will be able to control:

• Handle bill payments
• Pay for medical expenses
• Make investments
• Collect retirement benefits

Apply for Medicare and Medicaid, as well as other insurance benefits