A comprehensive estate plan has many objectives. They include ensuring your assets are passed on to your loved ones according to your wishes while minimizing gift and estate taxes. Another equally important objective is to communicate your preferences in advance for medical care in the event you’re incapacitated and can’t express your wishes. To that end, including advance health care directives in your estate plan is critical.
One problem: There’s often disagreement about the legal names given to those directives and their optimal use, depending on your jurisdiction. Here are a few health care directive-related terms you should be familiar with:
Living will. A living will is a legal document establishing criteria for prolonging or ending medical treatment. It indicates the types of medical treatment you want(or do not want) in the event you suffer from a terminal illness or are incapacitated.
This document doesn’t take effect unless you’re incapacitated. Typically, a physician must certify that you’re suffering from a terminal illness or that you’re permanently unconscious.Address common end-of-life decisions in your living will. This may require consultations with a physician.
Be aware that the requirements for a living will vary from state to state. It is important to have an attorney experienced in these matters prepare your living will based on the prevailing state laws.
Health care power of attorney. Comparable to a durable power of attorney that gives an “agent” authority to handle your financial affairs if you’re incapacitated, a health care power of attorney (or medical power of attorney) enables another person to make health care decisions for you. This is also called a “health care proxy” in some states.
Choosing an agent is critical. You can’t anticipate every situation that mightarise—virtually no one can—whereit’s likely that someone will have to make decisions concerning your health. Therefore, the agent should be a person who knows you well and understands your general outlook. Frequently, this is a family member, close friend or trusted professional.If your first choice can’t do the job, remember to designate a successor agent.
DNRs and DNIs. Despite the common perception, it’s not a legal requirement for you tohave a living will or an advance directive on file to implement a “do not resuscitate” (DNR) or “do not intubate” (DNI) order. To establisha DNRorDNI order, discuss your preferences with your physician and have him or her prepare the paperwork. The order is placed in your medical file.
Even if you already have a living will spelling outyour preferences regarding resuscitation and intubation, it’s still a good idea to createDNRorDNIorders when you’re admitted to a new hospital or health care facility. This can avoid confusion during emotionallychargedtimes.
POLSTs. In some states, an estate plan may include a document known as a “physician order for life-sustaining treatment” (POLST) or a similar name. A POLST may beused by a person who has already been diagnosed with a serious illness.
This document doesn’t replace your other directives. Instead, it complementsthem to ensure you receive the treatment you preferin case of an emergency. Your physician completes the form based on your instructionsand personal conversations.
If you’re hospitalized, the POLST is posted by your bedside. If you’re residing at a health care facility, it should be prominently displayed where medicalor emergency personnel can easily view it.
Consult your attorney, physician and health care agent
Advance health care directives must be put in writing. Each state has different forms and requirements for creating these legal documents. Depending on where you live, you may need certain forms signed by multiple witnesses or notarized — or both. Contact us for assistance if unsure of the requirements or the process.
Review your advance directives with your physician and health care agent to be sure you’ve accurately filled out the forms. Then let all the interested parties—including your attorney, physician, power of attorney agent and family members—know where the documents are located and how to access them.
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