End-of-Life Care Decision Making

Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we could become sick and unable to make our own medical decisions.

Medical science has led to much-improved technology that can keep patients alive longer. As a result of many well-publicized "right to die" cases, states have made it possible for individuals to give detailed instructions regarding the kind of medical care they would like to receive should they become terminally ill or are in a permanently unconscious state.

These instructions fall under the general category of "end-of-life care decision making." Depending on your state, this may take the form of a health care proxy, medical directive, living will, or a combination of these.

The Health Care Proxy (Health Care Power of Attorney)

Anyone may suddenly become seriously ill and lose the ability to communicate their preferences. This is why it's important to give someone you trust the legal authority to follow your wishes concerning medical treatment if it's ever necessary. Similar in some ways to a power of attorney, a health care proxy allows you to appoint someone to act as your agent. With this document, you can give them the power to make medical decisions on your behalf.

By executing a health care proxy, you can ensure that your agent will carry out your instructions. A health care proxy is especially important to have if an individual and family members may disagree about treatment.

In general, a health care proxy takes effect only when you require medical treatment and a physician determines that you are unable to communicate your wishes. How this works exactly can depend on the laws of your particular state and the terms of the health care proxy itself. If you recover and later become able to express your wishes, the health care proxy will no longer be in effect.

Appointing an Agent

Your agent will have the authority to make medical decisions if you are unable to make them yourself. So, they should be a family member or friend that you trust to follow your instructions. Before executing a health care proxy, have a serious discussion with the person you want to name as your agent. You want to be certain they will carry out your wishes concerning health care decisions.

These conversations can be difficult. Talk through some of the scarier health care situations you could potentially face someday. Consider your feelings on such sensitive topics as life-sustaining treatment, hospice care, palliative care, and perhaps spiritual support. You want your agent to know what you would be willing, or unwilling, to do, if it means jeopardizing your quality of life.

Once you have the health care proxy created, the agent should keep the original document. You should have a copy and your physician should keep a copy with your medical records.

Many hospitals, health care facilities, and nursing homes provide health care proxy forms of their own, as do some public agencies. However, consider executing your own versions, as part your overall estate plan, with an experienced attorney.

Medical Directives (Advance Directives)

Along with a health care proxy should be a medical directive, also called an advance directive. Such directives provide your health care agent with instructions on what type of care you would like.

You may include a medical directive in the health care proxy or prepare it as a separate document. Again, it may contain directions to refuse or remove life support if you are in a coma or a vegetative state. Or, it may provide instructions to use all efforts to keep you alive, no matter what the circumstances.

Medical directives can also be broader statements. That is, they may grant general authority for all medical decisions that are important to you. These broader medical directives give your agent guidance in less serious situations.

Strict health care privacy rules are in force today. That's why it’s more crucial than ever that everyone consider creating an advance medical directive. In it, you should specifically name the individuals who are entitled to access your health care information.

Under the privacy rules of the Health Insurance Portability and Accountability Act (HIPAA), which became effective in 2003, doctors, hospitals, and members of your health care team may no longer freely discuss a patient’s status or health with spouses or other family members — unless the providers have in hand signed consent forms from the patient. Remember: A general power of attorney for financial matters will not suffice. The instrument must refer specifically to HIPAA.

Living Wills

Living wills are documents that give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate.

The living will states under what conditions life-sustaining treatment should come to an end. If you prefer to avoid life-sustaining treatment, such as a ventilator, when it would not change your condition, you should execute a living will.

Like a health care proxy, a living will takes effect only upon a person's loss of capacity. Note that a living will isn't in stone; you can always revoke it at a later date if you decide to do so.

A living will, however, is not necessarily a substitute for a health care proxy or broader medical directive. It simply dictates the withdrawal of life support in instances of terminal illness, coma, or a vegetative state.

Also, do not confuse a living will with a "do not resuscitate" order, or DNR. With a DNR, you can specify that if you are an extreme health emergency, such as a stroke, medical professionals should not try to revive you.

A do not resuscitate order, however, is quite different from a living will. A living will only becomes effective if you have fallen into a vegetative state. Everyone can benefit from a living will. Meanwhile, DNRs are typically for frail patients for whom it wouldn't make sense to administer CPR.

Find more information on end-of-life decision-making from the Mayo Clinic.

POLST: A New Approach

Advance directives or "living wills" provide general guidance on what type of care a patient would like. Yet, at times, not all medical professionals follow them consistently. In part, this is because they don't give them explicit instructions regarding critical decisions about a patient's care.

An alternative has emerged in recent years: the Physician Orders for Life-Sustaining Treatment (POLST). The POLST uses a standardized medical order form to indicate which types of life-sustaining treatment a seriously ill patient wants or doesn't want if their condition worsens.

Work With an Estate Planning Attorney

To learn more about how to execute these documents, consult with a qualified estate planning attorney in your area. They can help you shape a plan for your future health care and well-being, as well as for the protection of your loved ones in the years to come.