A Short Explanation of an Advanced Healthcare Directive
Jonathan: Hello, I’m Jonathan Barlow, I’m an estate planning attorney at Clear Counsel Law group. Today we’re talking about advance healthcare directives, what they are, whether you should use one, how you might be able to change them. What is an advanced healthcare directive? It’s a document where you can sign and state what you want done in end of life decisions. Sometimes called a do not resuscitate order, it’s “Pull the plug” we say colloquially.
What do want done at the end of your life. Do I want to remain on life support? Do you want to receive artificial nutrition or hydration through a feeding tube? When do you want your life to be able to be ended? Those are directives and things that you can state and make those decisions clear in a healthcare directive.
Along with a Healthcare directive we often do what’s called a healthcare power of attorney. That’s where you get to mane somebody as what’s called your agent, name somebody to make those decisions for you when you’re not able to make your own healthcare decisions. If you’re not able to talk to your doctors this allows your agent to talk to your doctors and make those decisions for you at that time.
Of course they would want to follow the directives that you put in your healthcare directive but at least you have somebody there on the ground to talk to doctors and make those decisions in that situation. Now, how do you change a healthcare directive? Say later on down the road you decide that you do want to receive life sustaining treatments for a certain period of time to give a hope of recovery or vice versa, you decided, “No I would want life sustaining support removed.”
You can always change your healthcare directive as long as you have your mental capacity. Which means as long as you understand what it is you are doing and what you want to accomplish. In order to amend it or change it, these documents are relatively simple. We basically do a new healthcare directive for you. We’ll take your old one, we’ll tear it up, throw it in the garbage can, we’ll burn it, revoke it. We just want to get rid of that old one so there’s no confusion.
You can always amend it, you can always change it as long as you understand what you’re doing at the time. Now, sometimes people say, “I don’t really now what I want to do at end of life. I don’t know whether I want to be kept on life support. Should I still do this document if I don’t know what I want to do?” The answer to that is definitely yes.
If nothing else, signing one of these documents again allows you to name somebody to make those decisions for you. It avoids the situation if you didn’t have a healthcare directive or if you didn’t have a healthcare power of attorney and you became incapacitated, not able to talk to your doctors.
The only way someone would be able to make those decisions for you is to go into guardianship court, open a guardianship case and have the guardianship court involved in the process of your healthcare decisions. It becomes very cumbersome, it becomes time consuming.
It’s expensive to go that route, which all could be resolved by doing a simple healthcare power of attorney document. Brian has a question about advanced directives.
Brian: Yes, a quick question. If the power of attorney doesn’t follow the designated healthcare directive, what happens then?
Jonathan: That’s a great question. So you’ve named someone that you thought you thought you could trust to make these decisions as your agent and you’ve said, “These are my decisions that I want you to follow” and the agent’s saying, “I can’t do that. I’m not going to do that.” What happens in that situation?
The short answer is they would really cause a lot of problems. The most likely scenario is that it will eventually lead to a court action again. Probably again a guardianship court situation. Where again, the court will become involved in just determining whether to follow your written decisions or whether to follow up what the agent is trying to do.
It could cause problems and that highlights the importance of what we were talking about a moment ago, which is unique to name somebody that you can not only trust to make those decisions but that you can trust to make those decisions in a very difficult time. It’s a difficult time for them, it’s a difficult time for you and it’s a highly emotionally charged situation.
A lot of people that we trust and love won’t be emotionally able to make those decisions at that time. You need to find somebody who has a strong will and who understands very clearly what you want them to do in those situations and would be willing to follow what you wanted to do. There’s a lot of thought process that should go into this as you think about this important decision of who should make those decisions for you.
Otherwise like I said, you’re going to find yourself in an even worse situation with guardianship court involved. Fighting between the doctor’s and your agent and you’re family. All situations that don’t need to happen at that time in your life.
We’ve talked a lot about advanced healthcare directives, healthcare power of attorneys in this video. I thank you for watching the video. If you have other questions about it, more specific questions feel free to give me a call or any of our other attorneys at Clear Counsel Law Group and we’ll answer your questions about healthcare directives and healthcare power of attorneys.