Why Is This Important?
A crucial aspect of estate planning is documenting your healthcare and end-of-life preferences for situations when you're unable to communicate them yourself. There are generally two components to this planning:
- First, naming an agent to make decisions and communicate your wishes (often accomplished via a “Power of Attorney” or appointment of “Health Care Representative”)
- Second, documenting your wishes about the type of care you would want (or would not want) in certain circumstances, as well as your preferences for organ donation, life support, disposition of remains and memorial or funeral services.
Preparing some or all of these items can relieve tremendous stress from your family members when they are faced with making decisions about your care. Even if you do not have strong preferences to document, naming an Agent who you trust to make those decisions for you is recommended.
It’s important to note that these two components (naming an agent and documenting your preferences) often take different forms in different states (and sometimes even between medical facilities and attorneys). The format is not necessarily an issue — what’s most important is the content and that it reflects your designation and wishes.
Key Terms You Should Know
Health Care Power of Attorney
This document (or section of a document) designates an Agent to make healthcare decisions on your behalf if you’re unable to communicate them yourself, and what powers your agent has when making those decisions. If you have minor children, this document can also provide for care and health needs of those children during your incapacity. This document can also allow your agent to communicate your wishes regarding life support, organ donation and the disposition of your body.
Health Care Directive
This document (or section of a document) describes your wishes regarding withdrawing or withholding life support and other types of medical care in specific circumstances. Your wishes in this document are generally carried out by your Agent named in the Health Care Power of Attorney.
Life Support
In general terms, “life support” refers to medical treatment that would keep you alive, and that without it, your death would occur soon or immediately. For example, resuscitation (CPR), use of an artificial ventilator, and artificial nutrition and hydration.
Considerations When Choosing a Health Care Agent
Your Health Care Agent will be able to make medical decisions on your behalf if you're incapacitated. By naming a Health Care Agent, you ensure that someone who understands and respects your wishes can make decisions for you. This person can be a family member, close friend, or any competent adult you trust.
While a Directive provides specific instructions, a Health Care Agent can interpret and apply your values to unforeseen circumstances, offering a level of flexibility and personalized decision-making that a directive alone cannot provide. Your Health Care Agent can also advocate for your wishes in medical settings, ensuring that your preferences are respected even in challenging or contested situations. This is especially important if there are disagreements among family members or with health care providers.
What if you do not select a Health Care Agent?
Generally, if an individual is incapacitated and has not designated a health care agent through a power of attorney, the law provides a default order of people who can make health care decisions on their behalf.
The hierarchy is as follows:
- Court-Appointed Guardian: If you have a guardian appointed by the court who has authority to make health care decisions, the guardian is the first in line.
- Spouse or State-Registered Domestic Partner: If you are married or have a registered domestic partner, that person has the next authority to make health care decisions. If you have a partner but are not a legally registered domestic partner, then your partner will not have statutory authority to make decisions for you.
- Adult Children: If there is no spouse or domestic partner, your adult children (18 years or older) can make health care decisions. They are typically expected to agree collectively on decisions if there is more than one child.
- Parents: If you do have any adult children, your parents are next in line.
- Adult Siblings: If you have no living parents or if they are unavailable, your adult siblings are next.
- Adult Grandchildren: If none of the above are available, your adult grandchildren (if any) can make decisions.
- Adult Nieces and Nephews: If no higher-priority relatives are available, your adult nieces and nephews can make health care decisions.
- Adult Aunts and Uncles: If there are no adult nieces or nephews, your adult aunts and uncles are next in line.
- Close Friends: If none of the family members listed above are available, a close friend may make health care decisions, provided they have maintained a close relationship with you over a significant period and are familiar with your morals, values and preferences and completes a legal, written declaration to that effect.
- Legal Authority (Hospital Administrator or Attending Physician): If no family or friends are available, the hospital administrator or attending physician may make decisions in consultation with other health care professionals, taking your best interests into account.
Each level in this hierarchy only applies if all individuals in the higher categories are either unavailable, unwilling, or incapable of making decisions. Additionally, individuals at the same level (e.g., multiple adult children) are generally expected to reach a consensus on health care decisions, though disputes may be resolved through further legal proceedings if necessary.
What should you consider when naming your Health Care Agent?
Choosing your own Health Care Agent, and ideally at least one successor to your first choice, will guarantee that you choose the person to make your medical decisions.
- Trust and Reliability. Choose someone you trust completely, who will act in your best interests and follow your wishes, even under pressure. They should have a good understanding of your values, preferences, and end-of-life wishes.
- Emotional Strength. Your Health Care Agent may need to make difficult, potentially life-altering decisions. Pick someone who can remain calm under pressure and make decisions even during emotional situations.
- Availability. Your agent should be able to be contacted at any time, especially if you have a health crisis. It's often helpful if they live close by or are willing to travel if necessary.
- Communication Skills. They should be able to communicate clearly and assertively with medical professionals, family members, and others involved in your care. Their ability to ask questions, understand medical information, and advocate on your behalf is essential.
- Understanding of Your Wishes. Choose someone who understands your healthcare wishes thoroughly, including preferences around life support, resuscitation, pain management, and other treatments. Be sure to have open discussions with them about your preferences, so they are fully informed.
- Familiarity with Medical Settings. While not essential, someone with a general understanding of healthcare, such as a background in the medical field, can have an advantage in understanding medical terminology and procedures.
- Willingness to Follow Your Decisions. Make sure your agent is someone who respects your wishes and will adhere to them, even if they personally disagree with certain choices. They should prioritize your desires over their own feelings.
- Backup Agent. It’s wise to appoint a secondary agent in case your primary choice is unavailable when the need arises.
Considerations for Your Health Care Preferences
Your Health Care Agent has the ability to make health care decisions for you if you are unable to communicate your wishes. You have the opportunity to provide specific guidance, wishes or directives to your Health Care Agent, but if you do not, then your Health Care Agent must act in accordance with your known expectations or, if unknown, in your best interest.
This “substituted judgment” standard requires agents to prioritize your values, religious beliefs, and quality of life (if known to the Health Care Agent), even if no specific directives are available. In circumstances involving significant medical or ethical decisions, Health Care Agents are encouraged to seek guidance from healthcare professionals and, when necessary, legal counsel, especially for decisions with substantial impact on the person’s well-being or end-of-life care.
General Responsibilities of a Health Care Agent
Absent your specific instructions or wishes, your Health Care Agent will have the following general authority:
Medical Treatment Decisions
To consent to, refuse, or withdraw medical treatments other than those that are “life support” treatments. This includes making choices about surgeries, medications, and other interventions based on what they believe aligns with your values and best interests.
End-of-Life Care Decisions
To make end-of-life care decisions, such as whether to continue or withhold life-sustaining treatments, if these choices are needed. While they must follow any known wishes, they may also consider the person’s quality of life, comfort, and dignity. These decisions can include completing and signing a Portable Orders for Life-Sustaining Treatment (POLST) form or a Do-Not-Resuscitate (DNR) order on your behalf if necessary.
Accessing Medical Records
To access your medical records and communicate with health care providers, allowing them to fully understand the person’s health status, treatment options, and potential outcomes.
Living Situation and Long-Term Care
If needed, to make decisions about where you should live to receive appropriate care. This might include choosing a skilled nursing facility, rehabilitation center, or another long-term care setting.
Hiring and Firing Health Care Providers
To choose or change the person’s doctors, hospitals, and other care providers, advocating for quality care and ensuring that your medical and personal needs are met.
Care for and Custody of a Minor Child
It is important to consider whether your Health Care Agent would also be a suitable Agent to make health care decisions about your minor child. If your incapacity might be lengthy, it is possible that a Guardian could be appointed to act for your minor child; but it is also a good idea to consider who could serve to help your child temporarily.
Keep in mind that this power would only apply if you and your child’s other parent were unable to communicate decisions for the child or to keep custody of the child. Consider the following:
- Is your Health Care Agent also responsible, trustworthy, and someone who can be relied upon to act in your child’s best interests?
- Does the child already know and have a positive, trusting relationship with this person? Having someone familiar can provide comfort and stability during an otherwise uncertain time.
- Does the potential agent live close by? Consider how the agent named might impact the child’s schooling, friendships, and daily routines.
- Does the person have experience with children, particularly with children of a similar age?
- Is this person realistically available to take on the responsibility? Consider whether they have the time, energy, and willingness to provide the level of care required, especially if they already have children or other responsibilities.
- Could this person make medical decisions for your child and would their decisions align with your own?