Chestnut Hill Legal Blog

Do I Really Need an Estate Plan? - Part 3 - Advance Health Care Directive

April 9, 2018


This is part 3 in a 4-part series intended to help you determine whether you need an estate plan. In this post, we’ll focus on the advance health care directive.

What is an advance health care directive?

Your advance health care directive is basically two things in one. First, it’s a medical power of attorney, which is very much like a financial power of attorney (as discussed in the previous article), except that it pertains to health care decision-making rather than your financial affairs. Second, your advance health care directive contains what is traditionally referred to as a living will. Your living will state your preferences with regard to the medical treatments you would wish to receive if you were in something like a permanent coma or in an irreversible vegetative state.

Health Care Power of Attorney

The person or persons you name as agents under your health care power of attorney will interpret and apply the instructions in your living will, in case you are incapacitated and unable to make health care decisions on your own. Often, as with a financial power of attorney, your primary agent is your spouse or partner, if you have one. If not, it can be a close friend or family member – someone in whom you have a high level of trust and who has the maturity and stability to handle decision making in difficult circumstances.

What happens if you don’t have it?

Without a healthcare power of attorney, you do not have a named agent to carry out the wishes you specify in your living will (as described below) or to make other health care decisions on your behalf. Those decisions will still get made, of course, and most health care providers will look to your “next of kin.” Next of kin does not have a specific legal meaning, but generally, it means your closest living family member. Sometimes this is exactly the person you want making health care decisions on your behalf, but sometimes it is not. Remember, this person needs to have a high level of maturity and the ability to make tough decisions under difficult circumstances. Ideally, you have a health care power of attorney named in your advance health care directive who you know will be a good choice.

Living Will

As stated above, your living will is where you specify your preferences for life-prolonging medical treatment if you are suffering from an end-stage medical condition -- a vegetative state or a state of permanent incapacity from which, your health care providers agree, you do not have a reasonable chance of significant recovery. Your living will can say whatever you want it to, but by working with an attorney you are able to craft language that is more likely to be interpreted according to your wishes. It usually includes a list of medical treatments, such as breathing machine, dialysis, etc., which you are able to opt into or out of. But remember – what is stated here only applies to situations in which you do not have a reasonable hope of significant recovery; if any of the listed treatments are likely to help you recover, they will, of course, be administered (or at least, your living will does not prevent them from being administered).

What happens if you don’t have it?

Without a living will, your next of kin may be left to guess about what your wishes are with regard to life-prolonging measures. Unfortunately, this means that in addition to dealing with a difficult situation because you are incapacitated and unable to communicate, your next of kin may be trying to figure out whether you would have wanted certain life-prolonging measures, or whether you would want to pass as painlessly as possible. This is a difficult topic to think about and, thus, easy to procrastinate on. However, it is much easier for you to make your wishes clear while you are healthy than it is for loved ones to try to decipher your wishes if you become critically sick or injured.

Attorney Louis P. DiLello

Louis DiLello, Esq.

Founding Attorney

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