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How a Health Care Declaration and Health Care Power of Attorney Work
It would be in your best interest to create documents that specify your wishes in the event you are disabled and cannot represent yourself.
The average person will try to avoid any thoughts of what would happen to them in the event they become ill, or are involved in an accident. Who would direct their medical needs? If you have not planned or created documents specific to your desires, it will be left up to family members, or even the court. A judge or family member could direct your care as they see fit, and not necessary, as you desired.
Two Kinds of Health Care Directives
A health care declaration and a durable power of attorney are documents that give you the power to protect your wishes in the event you become ill or disabled. Its preferable to create both. There are some states where they are combined, typically called an advance directive.
Health Care Declarations
A health care declaration is a document that is directed to health care professionals. It can be simple or complex; detailing the type of care you wish to receive in the event you becomes incapacitated. To the average person this document is called a living will. Different states have other names such as, advance directive, declaration regarding health care, directive to physicians, designation of health care surrogate, medical directive, or patient advocate designation.
Durable Power of Attorney
In the event you become ill of incapacitated it would be wise to create a durable power of attorney for health care. With this document you will appoint a trusting friend or relative to be your health care agent. It is often called a health care proxy or attorney-in-fact for health care. Their job is to make sure your wishes are followed. They will oversee healthcare providers with legal authority. Generally it is the most trusted and available person you know
Health Care Directives
When you chose a friend or relative to be your health care agent, bear in mind that they must be 18 years old. They must be able to comprehend, how the document works, and understand it completely. Thats one of the reasons, its rare to choose a young person unless they are exceptional.
Notarization and Signing Your Documents
Whatever state you live in it is a requirement that health care documents are signed. If for some reason you are incapacitated or ill, you can assign another person to sign for you. Depending on state law, the documents have to be signed in the presence of a notary public or witnesses. The reason for the witnesses is to confirm that you or the other person are of legal age and mentally competent.
When Does Your Health Care Directive Become Activated
Your doctor will determine when is the correct time for your health care directives to take effect. Generally, When you can no longer make health care decisions on your own, and lack the physical or mental capacity. What this means is:
- You are unaware of whats going on around you and cannot comprehend the health care decisions, that need to be made.
- You are no longer able to express your wishes for health care by speaking, writing, sign language or gestures.
When this takes place and you have become unable to express your desires the health care directive will become activated. If there is any question concerning your ability, and your comprehension of your health care decisions, you doctor will consult you agent or family members to make the final decision.
There are states that will allow your agent or family member to take charge of your health care decisions immediately. If this option is allowed in your state you may feel it is a wise choice, for several of the reasons below:
- Immediate Action: This option gives your agent or family member the opportunity to make decisions quickly. They can step right in and take charge of your health care needs, without having to consult your doctor for confirmation. This is often practical when you have no special connection with a certain designated doctor whom you trust.
- Giving you Agent Control: Your most trusted friend or relative, not your doctor should be the person to direct your health care needs, when you are no longer able to care for yourself.
- Early Authority For You Agent: One of the reasons you would want to give you agent the ability to come in early is clear. The moment your agent has the control over your health care decisions, you no longer have to be concerned or worried and can have peace of mind. Even at this point, if you have the ability to make your own decisions, its good to know everything is in place. Your agent will be interested in your concerns and do everything possible to make these things come to be.
- Your agent will have the authority to express what you want and the way you should to be medically treated. As long as you have the ability to control these issues, you are still in charge. When you get to the point where you no longer have the capacity to make your own decisions, you agent or family member will follow your instructions and do their best to carefully follow the plan in your health care declaration.
The End of Your Health Care Directive
As long as you remain alive your health care wishes will remain active, unless you or the court revokes these documents, which would be unusual. Below are a few examples when a health care directive is no longer active:
- A Personally Revoked Document: At any time as long as you are able, you may revoke or change your health care document. Be certain to inform your agent or family member and your health care providers that it has been cancelled.
- The Court Steps In: The court is aware that health care decisions are best made when you are healthy and of sound mind, and not before a judge. But when a challenge comes up that questions the validity of a document or any other issue, it can appear before the court.
If there is a question of your competence at the time you signed the documents by someone, the court can step in, although it is extremely rare. They can ask that the document be invalidated. They will have to prove and not just think, that you were not of sound mind when you signed the document. The burden of proof rests with them. Thats the reason it rarely occurs. The court will presume you were of sound mind when you signed your health care documents.
Invalidating your document is a possibility if the document is not filled in properly. Some states require that the document be notarized or witnessed. In the absence of that the court can invalidate the document. In the event this occurs it is more then probable that your desires will come to be, if they are clearly understood and you were of sound mind, when the document was written. The United States Supreme Court in the case of Cruzan v. Director, Missouri Dept. of Health, in 1990 stated that a technical error will not stand in the way of a persons real intentions.
- Your Agents Authority is Revoked: If, it comes to someones attention after your health care document has become effective, that the agent is not following the terms of the document or are acting properly on your behalf, that person can go before the court and request that it be investigated. If your agent or family member acted in an improper manner, the judge can take away his or hers authority. In the event this occurs your alternate agent specified in your health care document will take control. If no alternate agent is available, the judge will invalidate the document and a guardian or conservator will be appointed to act on your behalf.
- Getting Divorced: In the event you obtain a divorce, there is no implications, and it will have no effect on your health care document. In many states if your wife or husband was named as your agent, it will be automatically be revoked. Your alternate agent will then replace them. It would be in your best interest to check your state law. If your divorce occurs before your health care document becomes activated it would be a smart move to create an entirely new document and avoid any confusion.
- When You Die: For the most part your health care documents become unnecessary after you death. But there are states where they are still used for limited reasons. The way you are buried or cremated may be part of your health care directive and your agent will be responsible for these actions, as well as supervising organ donations or an autopsy.
"How a Health Care Power of Attorney and Health Care Declarations Work"
Return to all news and articles
Please read more related legal information:
Advance Health Care Directive Legal Information
Frequently Asked Questions
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