One of the most critical aspects of practicing elder law is advanced directives. As the senior population in the United States increases, making wishes known and clear about medical care is crucial.
What Do Advanced Directives Do?
Simply put, advanced directives give individuals the capability to determine what types of medical treatment they would like to receive in the event they are not able to communicate those wishes themselves.
Advanced directives can also be referred to as:
- Living wills:These are documents in which instruction is provided in the event of serious or catastrophic medical situations such as incapacitation or disability. Generally speaking, living wills are created in advance. This is done to prevent a situation in which the patient is unable to take legal action due to his or her medical condition. Oftentimes a living will appoints a person who is a representative of the patient and usually has the ability to make decisions on their behalf.
- Power of attorney: This is a legal document that, generally speaking, provides one person the authority to act on the behalf of another. Historically, the person given this authority is known as the “agent” or “attorney in fact”. This individual need not be an attorney. The person granting the power of attorney is usually called the “principal”. Typically, these are signed in front of a witness or witnesses.
What Does a Living Will Generally Contain?
Generally speaking, living wills instruct a person on how to proceed with medical treatments. The representative has the duty to obey the directives outlined in the living will.
In many cases, a living will has directives on issues like:
- Organ and tissue donation;
- Items concerning life support and resuscitation;
- How to handle a person being in a coma for a prolonged period of time; Decisions surrounding tube feeding;
- What happens in the event of an emergency surgery; and
- Types of medicines and injections the patient may choose to receive or opt out of.
Usually instructions are very specific as to the wants and needs of the patient. Generally, these instructions may be influenced by personal needs, cultural or religious practices.
What If There Is a Dispute of a Living Will?
In some cases, it is not possible to avoid legal disputes of a living will even when directives are very clear and straight-forward. Disputes may occur around the meanings of selected words or phrases, much like in a legal contract.
Disputes may revolve around advancements in medical technology that might have taken place since the creation of the living will. Other disputes may take place because of medical treatments or procedures that have been or may be performed even against the express instructions laid out in a living will. There may be decisions that violate state or federal law. Disputes may even be a result of unauthorized decisions and actions taken by the agent chosen by the creator of the living will.
If any conflict arises involving a living will, it may be necessary to file a claim in court for judicial review.
What If There Is a Dispute of a Living Will?
Typically, there are two types of power of attorney: durable power of attorney and a non-durable power of attorney.
A durable power of attorney usually refers to a legal arrangement where one individual is legally authorized to make legally binding decisions for another person. Mostly, the durable power of attorney is automatically given. These are situations such as a parent over a minor child or a spouse over another spouse in the event one becomes incapacitated.
In some cases, though, the durable power of attorney is not automatic. Usually, when such a situation arises, one can appoint another person to make legally binding decisions. Typically, this takes place in the event of incapacitation.
A non-durable power of attorney is when power of attorney is revoked with operation.This is usually when the person granting the non-durable power of attorney dies or becomes incapacitated.
Powers granted to a person named as a power of attorney are fairly comprehensive. For example, the individual given power of attorney may be able to legally: sign documents, make financial and or medical decisions, or make decisions with respect to real and personal property. Powers of attorney may also be very specific such as: single transactions to an individual piece of property.
What Steps Should Be Taken After Creating an Advanced Directive?
Usually, there are a few simple steps you should follow once your advanced directive is in place. One copy should be given to your physician. In the event of an emergency, having a card on your person indicating that you have an advanced directive may be helpful. The directive should be located in a safe place as well and your agent should be notified of its existence.
Should I Consult a Lawyer About an Advanced Directive?
Having an experienced wills and trusts attorney can help you understand advanced directives which can be very difficult to create. An attorney can also assist with keeping the directive in compliance with state laws to ensure your wishes are respected.