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Planning for the Future with an Advance Directive for Health Care – PART 1

2017 May 10 by

All this month Nobles & Sigman will be talking about why you need an Advance Directive for Health Care and how to draft one that complies with Massachusetts law. In this first article, we will explain how a living will is different from a Massachusetts health care proxy and suggest what to look for in a health care agent. In part two, to be published later this month, we will be busting some myths that might keep you from proper health care planning.

Terminology Matters: What is an Advance Directive?  

An Advance Directive is the blanket term for a legally enforceable document that allows you to control how medical decisions will be made on your behalf if a doctor determines, through specific medical criteria, that you are unable to make your own decisions. This is referred to as being “incapacitated,” and it can be a temporary situation where you are expected to recover, or a permanent condition, from which recovery is unlikely. Without an Advance Directive, your doctor may be required to provide you with medical treatment that you would have otherwise refused.

The good news is, it is relatively easy to write or to change an Advance Directive. The law presumes that all adults are competent to make and to revoke an Advance Directive, so any adult over 18 may write one. Depending on your state law, an Advance Directive may contain two elements: (1) a living will and (2) a health care proxy (HCP). (We’ll talk more below about how some states only recognize either the living will or the HCP). The HCP is sometimes called the health care power of attorney, and the person nominated to be the health care proxy is sometimes called the health care surrogate.

Every state has its own Advance Directive statute and body of case law governing how the statute will be interpreted by a judge. It is important to note that the Advance Directive will only be used if you become incapacitated and need medical intervention. If you regain your ability to make medical decisions, the Advance Directive becomes moot and you are once again your own real-time health care advocate. If you pass away, the Advance Directive ceases to have any legal effect.

In many states, the living will and the HCP can be used together to create a comprehensive and legally enforceable statement of end of life wishes and a grant of decision making authority. A few states (including Massachusetts) recognize only the HCP and not the living will. If you live in or spend a good deal of time in a state holding this minority view, you will want to make sure your Advance Directive is compliant with that state’s law.

The Living Will with Health Care Proxy Delegation

A living will should not be confused with a last will and testament (usually just called a “will” these days). Your will governs the disposition of your property after you die. A living will is a document that states the types of medical interventions that you do or do not want in specific situations.

For example, you may state in your living will that you do not want a feeding tube to be placed if doing so would only prolong the dying process. You may also more generally specify in your living will that you do not want your life to be artificially prolonged and that you want to be allowed to die naturally with only the administration of medication for comfort care. In the alternative, you may wish to make it clear that you DO in fact wish any and all measures be taken to save your life. As long as what you are requesting is legal, the choice is yours.

Individual states require different formalities in order for the living will to be effective. Although some states do not require that the living will be notarized, it is a good idea to execute the document with as much formality as possible (such as a notary and at least two witnesses) in case you become incapacitated in a state that requires these formalities.

Many living wills contain the HCP, or a clause appointing a person to act on your behalf as your agent in medical decision making. If decisions to be made are outside the scope of what you have outlined in your living will, your health care agent should be permitted to make decisions for you based on this grant of authority.

The HCP is the only Advance Directive legally enforceable in the Commonwealth. If your living will from another state provides for the appointment of a health care agent, it is likely that this component of your living will may be enforced in Massachusetts.

Choosing a Health Care Agent in Massachusetts

Massachusetts residents may be surprised to learn that living wills are not enforceable in the Commonwealth, which means that doctors and courts do not have to follow them.  Instead, as stated above, Massachusetts law allows citizens to nominate a health care agent in a stand-alone document, simply called the health care proxy or HCP. You do not need an attorney to exercise the HCP and Massachusetts does not even require a notary to witness your signature.

An HCP can give you peace of mind that your wishes will be carried out, provided you choose the right person to be your agent. Under Massachusetts law, a properly drafted HCP gives the person you choose near-absolute authority to make decisions for you. But how do you know that you’ve made the right choice?

First of all, choose someone who understands your values, and perhaps most importantly, someone who would enforce your values even if they conflicted with their own. Be sure to choose a back-up or successor agent, in case of a common disaster with your initial agent. Make sure that you have regular communications with your agent to ensure that you remain on the same page regarding end of life treatment. If someone asks you to be his or her HCP, think about what it would mean to make these sorts of decisions. Make sure you understand what the other person wants.

Many Massachusetts residents elect to complete a living will as a personal wishes statement, to be used by their HCP in guiding decision making. Although the personal wishes statement is not legally binding, it may be important if you believe that there could be differences of opinion among family members who might challenge the decisions of your HCP.

If you are interested in writing your Advance Directive, or revising one previously drafted, it makes sense to contact a qualified attorney. Our firm focuses on helping women entrepreneurs to create, nurture, and sustain their professional legacies. We believe that a thoughtfully drafted estate plan – including an advance directive – is an important component of personal legal wellness.

To learn more about Nobles & Sigman, please visit us at www.noblesandsigman.com.

© 2017 Erin Nobles. All Rights Reserved. This article is not intended to be legal advice.