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The basics of health care directives and health care powers of attorney

Take control of your future by making a plan for unforeseen health care events

As humans, we don’t like entertaining the idea of bad things happening to us or to our loved ones. However, avoiding planning for our own demise or for a loved one’s death doesn’t stop it from happening — and can actually make it more taxing and confusing when it does happen.

Statistics show that many of us prefer to avoid thinking about it: 63 percent of adults in the U.S. have not made formal plans as to how they want to be cared for in a critical life situation or if their death is imminent.1

Unfortunately, unexpected health issues and accidents can happen to anyone at any time. And when they do, you and your loved ones are deeply affected — both physically and emotionally.

Planning ahead brings clarity for loved ones

The middle of a crisis is not the best time to make life-and-death decisions for yourself or for a loved one.

Imagine this scenario: You’re unconscious and your loved ones are gathered around your hospital bedside debating about whether you’d want the medical staff to put you on life support — and for how long.

Now imagine this: You’re unconscious and your loved ones are gathered around your hospital bed comforting you and each other because your wishes regarding life support are clearly communicated in a living will.

No doubt about it: The second scenario is better.

Thankfully, having an advance healthcare directive in place — before a crisis occurs — removes any ambiguity in a health crisis. It ensures that your wishes will be known and followed. It also removes any undue stress and tension among medical staff and family members. Here are some basics to get the conversation started.

Why are healthcare directives important? 

When you can’t make known your health care wishes due to serious illness or injury, then you need something or someone you trust to do it for you.

Health care directives are just what the doctor ordered when it comes to expressing your medical wishes in life-challenging situations: when you are physically or mentally unable to do so.

And advance directives, such as a medical power of attorney (also known as a health care directive or health care proxy), are especially important to have at the ready during these emotional moments.

What is a health care directive?  

Healthy people want to live for as long as possible. However, when you’re not healthy due to serious illness or injury and your quality of life — and potential of recovery, has been affected — you may feel differently.

A health care directive (HCD) is a written, legal document outlining your wishes regarding health care for the event you are unable to effectively communicate them yourself.

It informs and directs a patient’s physician and loved ones to make medical decisions on your behalf when you are unable to do so, such as whether to provide, withhold or withdraw life-sustaining medical treatments.

It’s important to think about possible scenarios and how you’d want to be cared for, and to put it in writing in case you’re unable to express your health care wishes in the future. In emergency situations or if you’re unable to communicate your desires, a HCD can serve as your voice. 

Regardless of whether you have a HCD or not, in situations like this, you will receive medical treatment. A HCD aids in ensuring the treatment you want is carried forward, particularly when emotional end of life situations arise. It can clearly outline your choices with regard to your medical treatment, eliminating that stress and decision making from loved ones.

What is covered in a health care directive?

Some people might use their health care directive to express they want medical experts to prolong their life using any means possible. Others might reject artificial means to keep them alive but accept palliative care, such as pain medication, to keep them as comfortable as possible.

If a patient is terminally ill or is in a coma due to an accident and would die without a life-sustaining device (such as a ventilator or a feeding tube) or without medical treatment (like resuscitation and dialysis), the medical care team can follow a patient’s instructions outlined in the HCD. Those who do not want CPR if their breathing or heartbeat stops can sign a do-not-resuscitate (DNR) order to be included in their HCD.2

Share what’s important to you

Include a narrative in your HCD that communicates your values and goals — and provides some context as to what gives your life meaning.

For example, you might express that if you can’t ever interact with your grandchildren or other loved ones, you’d rather be made as comfortable as possible as you make your exit.1

Health care directives can also include instructions surrounding organ and tissue donation.

To be sure you create a HCD that’s valid and in accordance with state law, consult with an attorney in your state of residence.

And once your HCD is executed, don’t keep it just to yourself. Store the original in a safe place and give copies of your HCD to your health care proxy and your durable power of attorney (more on this below) to your doctor, primary clinic/hospital, and/or trusted family members and friends.2

What is a durable power of attorney?

A legal document, such as a health care directive , is essential for proper planning in life-and-death matters. However, a durable health care power of attorney (HCPOA), or health care proxy, is (almost) equally as important.

Think of the HCD as a set of instructions on things you’ve considered, and the HCPOA as the document that gives someone else to make the decisions for you if the HCD is silent on a particular treatment.

A durable power of attorney is a legal document through which you give another individual the authority to make certain decisions or to act on your behalf when you are unable to do so. Depending on your jurisdiction, this authorized individual is known as your attorney-in-fact or agent. For Medicare, a beneficiary must give written permission for a POA to be able to work with Medicare on your behalf.3

How does a durable power of attorney work?

Because your attorney-in-fact or agent — by all legal intents and purposes — is essentially you, you need to give it some serious thought as to who it will be. You’ll want to appoint a trusted and responsible family member or friend who is 18 years of age or older as your attorney-in-fact or agent — because he or she will make serious life-altering medical decisions on your behalf.

This is a big responsibility. More than 25 states have adopted the Uniform Power of Attorney Act, which requires that an agent keeps a record of all transactions made under the POA. Family members and other interested parties can demand to review the documents whenever they want.4

Considerations for developing a HCPOA

Some people want to have more than one agent. And some experts recommend picking more than one agent to serve as a backup in case your primary agent becomes sick. If that’s the case, specify if they should act together or independently.5

Openly communicate with your attorney-in-fact or agent and loved ones about what’s important to you: Is it to be as comfortable as possible even if that means your life might be shortened? Or would you rather deal with the pain and spend as many days as you can with your loved ones? Make sure you communicate openly about what makes your life worth living and adds to your quality of life.1

If you have open discussions about these matters now, your durable power of attorney can interpret your wishes and make a thoughtful decision when an emergency arises.

You’ve taken the time and the effort to choose someone to be your durable power of attorney, so be sure they have the power to act in your behalf. Avoid the risk of having your proxy become “stale” by signing a new power of attorney every few years.5

The value of being prepared

Health care directives and durable health care powers of attorney are essential elements of a complete estate plan.

Working with an attorney, these health care planning documents can cost a few hundred dollars. And you can expect to pay an attorney $2,000 to $3,000 for a complete estate plan — but you might be surprised at the relief you feel after you prepare for something that you used to avoid.

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1. Harmon Courage, Katherine. "Planning for end-of-life care is more crucial than ever. Here's how." NPR. Published July 9, 2020.

2. Kerr, Emma. "Questions to ask before writing a living will." U.S. News & World Report. Published June 15, 2021.

3. Omdahl, Diane. "For Medicare, having a power of attorney is not enough." Published August 4, 2020.

4. Carlson, Bob. "What you need to know before agreeing to be a power of attorney." Published April 23, 2021.

5. Fletcher, Christine. "5 Power of Attorney Clauses You Need to Focus On." Published July 19, 2021.

This information should not be considered legal advice. Financial professionals do not provide legal advice. Consult a licensed attorney regarding your situation.

DOFU 9-2021