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Health Care Power of Attorney, Advance Health Care Directive, and Living Will

Health Care Power of Attorney, Advance Health Care Directive, and Living Will

A Health Care Power of Attorney, Advance Health Care Directive, and Living Will each play an important role in healthcare decision-making, particularly when an individual is incapacitated, or facing end of life decisions. But what exactly are these documents, and what exactly do they do?


What is the Difference Between a Living Will and an Advance Health Care Directive?

The documents both generally share the same purpose – to address what kind of treatments you would or would not want when facing end of life decisions. Essentially, a Living Will states that if various treatments are NOT going to make you better or cure you, you DON’T want such treatments. Alternatively, an Advance Health Care Directive allows you to say “YES” or “NO” to many types of health care treatments, if such treatments are NOT going to cure you or make you better.

Both documents are basically addressing the following question: 

“If you were at the end of your life and NOT expected to recover, and you could receive treatments that would NOT cure you or make you better, but MIGHT make you live longer, would you want those treatments?

A Living Will usually answers this question with a blanket “NO, I would not want any such treatments”. A Health Care Directive gives you the option to say “Yes” or “No” to such treatments. If you fill out your Health Care Directive in such a way as to say “No” to all such treatments, the document becomes very similar to a Living Will at that point.

In Missouri, Advance Health Care Directives are the norm, and are far more common than Living Wills.


What is the Difference Between an Advance Health Care Directive and a Health Care Power of Attorney?

An Advance Health Care Directive is designed to address WHAT kind of treatments you would (or would not) want in various end-of-life scenarios. Essentially, the purpose of the document is to answer the question:

“If you are at the end of your life, and certain treatments won’t actually cure you or make you better, but may make you live longer – would you want any such treatments?”

Alternatively a Health Care Power of Attorney addresses WHO will be in charge of your health care decisions, usually becoming effective when you lose capacity. 

So, an Advance Health Care Directive has a much higher bar for when it “kicks in” and a much smaller window for when it actually applies – it only applies when a person is close to death and not expected to recover. However, a Health Care Power of Attorney can be effective at anytime, although it usually takes effect when the principal person loses capacity. Therefore, a Health Care Power of Attorney can possibly be in effect for a very long time – a person can lose capacity but not be in any danger of losing their life, nor be particularly close to the end of their life, while the power of attorney continues to be in effect.

As a side note, it is a very common practice in Missouri to combine both the Power of Attorney for Health Care, and Advance Health Care Directive, into one single, comprehensive health care document.


Choosing the Right Person to Be in Charge

Choosing the right person as your “Attorney-in-fact” under your Health Care Power of Attorney can be a crucial decision with long-lasting implications. As we just established, a Health Care Power of Attorney can sometimes be in effect for a long time. This person has the job of ensuring your wishes and decisions are followed as indicated in your Health Care Power of Attorney, as well as your Health Care Directive. This person will usually be a close family member or trusted friend.

When choosing the Attorney-in-fact” under your Health Care Power of Attorney document, it’s essential to consider the following traits:

  • Trustworthiness: This is perhaps the most critical trait. The person should be implicitly trusted, as they’ll be responsible for making important decisions on your behalf.
  • Ability to Handle Stress and Complex Decisions / Situations: Healthcare decisions can often be complex and stressful. Choosing someone who can handle this pressure, make rational decisions in stressful situations, and navigate complex medical scenarios is essential.
  • Good Communicator: Someone who is able to communicate with you, your family, and health care professionals without getting overly emotional, angry, or frustrated is a plus.
  • Understanding Your Wishes: The chosen person should clearly understand your personal beliefs, values, and wishes. They should be willing to respect your opinions and the stances you have taken, and make decisions as closely to that you would have decided if you were capable.

Remember, the primary purpose of a Living Will is to have your healthcare wishes known and respected, even when you can’t communicate them yourself. Therefore, choosing the right Attorney-in-fact is very important!


When Health Care Documents Become Effective

A Health Care Power of Attorney can become effective either now, or in the future:

  • Immediate Health Care Power of Attorney. Just as it sounds, as soon as the document is signed and notarized, it becomes effective, and your appointed “attorney-in-fact” immediately has power to make your health care Decisions.
  • Springing Health Care Power of Attorney. Alternatively, a Power of Attorney can “spring” into action at a specified point of time in the future. It is very common in Missouri for that specific time to be “when two doctors declare the principal person incapacitated”. If so structured, the document would “spring” into action and only become effective upon the receipt of two doctor’s letters declaring incompetence or incapacity of the principal.

A Health Care Directive will generally become effective when a person is near the end of their life, and not expected to recover. For example, common language from a Health Care Directive speaking to when it applies, might read similar to the following:

“If I am persistently unconscious, or there is no reasonable expectation of my recovery from a seriously incapacitating or terminal illness or condition, I direct that all of the life prolonging procedures that I have below written “YES” next to be administered to me, and those I have written the word “NO” next to be withheld or withdrawn from me.”

A Living Will, very similar to a Health Care Directive, would generally apply only in end of life scenarios. Rather than allowing for the principal person to answer “Yes” or “No”, it will generally just state “No, I don’t want any treatments that won’t cure me or improve my condition when there is no reasonable expectation of recovery”.


When Health Care Documents Terminate

All of the above documents terminate upon the death of the principal, or upon revocation by the Principal. After the death of the principal, such documents are no longer valid and carry no legal weight or authority.

However, please keep in mind that if a third party who is viewing the document, or has been presented the document, does not know that the principal is deceased or the document has been revoked, they would not theoretically know that the document was no longer effective.


How Your Attorney-in-Fact can Utilize Your Documents

Your Attorney-in-Fact has a specific role – to ensure that your healthcare wishes, as outlined in the Living Will, are respected and implemented.

Your Attorney-in-Fact does not have free rein to decide as they see fit. Their role is to ensure that healthcare decisions made for you are aligned with the directives specified in your Health Care Power of Attorney, Health Care Directive, or Living Will. This means they need to be familiar with your values, beliefs, and wishes related to your healthcare.

Your documents will likely give instructions on what you would (or would not) want in certain circumstances.  When your choices are clear, they should be followed.  However, when there is “gray area”, your Attorney-in-fact will have the authority to fill in the blanks, and determine what you would want if you were able to speak for yourself.  These sort of decisions could include:

  • Deciding on life-sustaining treatments such as artificial respiration, nutrition, hydration, tube feeding, or dialysis.
  • Making decisions about pain management and comfort care.
  • Choosing between different treatment options presented by the healthcare team.
  • Making end-of-life decisions, such as do-not-resuscitate (DNR) orders or organ and tissue donation.

Essentially, your Attorney-in-fact acts as your voice when you cannot communicate your wishes, ensuring your healthcare choices are respected. This is why choosing a reliable and knowledgeable Attorney-in-fact is of utmost importance.


What Happens if You Don’t Have Any Health Care Documents 

Not having a Health Care Power of Attorney or Health Care Directive in place can create uncertainty, delay, and complication, particularly when tough medical decisions need to be made. Some potential issues include the following:

  • Legal Disputes: In the absence of such documents, disagreements may arise about who should make healthcare decisions on your behalf, or what your decisions should be. This could lead to legal disputes among family members or health are providers, which is exactly what you should be seeking to avoid when making the above documents.
  • Unclear Wishes: Without Health Care Documents, your exact wishes regarding your healthcare may not be known or may be interpreted differently by different family members. This could lead to confusion and conflict among your loved ones and healthcare team.
  • Court Intervention: When disputes arise about your healthcare decisions, or if there is no one immediately available who is qualified to make decisions on your behalf, the Courts may need to step in. This could lead to a potentially lengthy process to appoint a legal guardian or conservator, or any number or types of Court battles, ultimately delaying critical healthcare decisions.

Not having a Health Care Power of Attorney, Advance Health Care Directive, or Living Will can lead to potential legal issues, family conflicts, and delays in treatment. To avoid such complications, please consider creating these documents while you are of sound mind to make these crucial decisions.


Our Role as Legal Professionals in Creating a Living Will

Creating your Health Care Documents is of utmost importance, and can have far-reaching implications. Having the guidance of legal professionals can be invaluable.

At Piatchek Law Firm, Our Estate Planning attorneys understand the numerous laws surrounding Health Care Powers of Attorney, Advance Health Care Directives, and  Living Wills. We can ensure that estate plan is legally sound and complies with all relevant laws, thereby minimizing the chances of disputes or challenges in the future.

We are happy to guide you through many possible scenarios and hypotheticals, be a sounding board, and answer your questions. We can ensure your documents are comprehensive. We can highlight areas you might have yet to consider and ensure that your directives cover various situations, providing clear guidance for your healthcare team and loved ones.

We can guide you through the entire process, from the initial consideration, to rough drafts, to the final signing, witnessing, or notarization, ensuring each step is conducted correctly and legally. We can help you achieve peace of mind.

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