When planning for the end of your life, it is only realistic to think about what would happen if you become physically or mentally incapacitated. Advance directives were created to enable you to give clear directions for what to do to ensure that your wishes are carried out if you become unable to communicate your wishes to a doctor.
An advance directive is a written statement of a person’s wishes regarding medical treatment. To be clear, as long as you are medically competent, you get to make decisions for yourself. Advance directives only come into play when you become incapable of making decisions and are not able to communicate your wishes to a doctor.
Both an Appointment of Health Care Representative and a Living Will are known as advance directives. It is important to have both because one appoints someone to make decisions on your behalf and the other describes the steps you do – and do not - want taken.
What Is a Health Care Representative?
Let’s start with the Appointment of Health Care Representative. In this document, you appoint someone to make health care decisions for you when you are no longer able to make them for yourself. That person is known as a health care representative.
What kind of health care decisions can your health care representative make?
They can consent to any care, treatment, service or procedure to maintain, diagnose or treat an individual's physical or mental condition. The representative can also refuse to consent or withdraw consent to any care or treatment and they can decide whether or not to provide or withhold life support. Much like a durable power of attorney, an Appointment of Health Care Representative shall not be affected by the subsequent disability, incompetence, incapacity or the lapse of time of the person being represented. This means that if you create an Appointment of Health Care Representative while you are competent and you later become incompetent, the Appointment of Health Care Representative is still valid.
When does “incapability” come into play in an advance directive?
Here’s where you need a doctor to weigh in. This is what the law says: If your attending physician determines that you are unable to understand and appreciate the nature and consequences of health care decisions and to reach and communicate an informed decision regarding treatment, then your health care representative is authorized to make health care decisions for you.
By the way, the law requires both an Appointment of Health Care Representative and a Living Will, to be signed before two disinterested witnesses. Why? Because if documents like these are ever challenged in court, the witnesses could potentially be called to testify that you were of sound mind when you signed either document and you were able to understand the impact of each document at the time that you signed them.
What Is a Living Will?
Let’s go over to the Living Will. In this document, you tell the world that if your medical condition is ever deemed to be terminal or you are permanently unconscious, you want to be allowed to die and not kept alive through life support systems.
What is meant by “terminal condition” and by “permanently unconscious?”
Terminal condition means the you have an incurable or irreversible medical condition which, without the administration of life support systems, will in the opinion of your attending physician, result in death within a relatively short period of time. Permanently unconscious means that you are in a permanent coma or persistent vegetative state which is an irreversible condition in which you are at no time aware of yourself or the environment and show no behavioral response to the environment.
How does the law define “life support systems?”
Life support systems are the artificial means of supporting someone’s life. They include:
- artificial respiration
- cardiopulmonary resuscitation
- artificial means of providing nutrition and hydration
- kidney dialysis
- antibiotics that are administered for a reason other than for your physical comfort
When someone signs a Living Will, these are the measures that they do not want if they are in a terminal condition or permanently unconscious and they are not capable of communicating their wishes to their doctor. Now that’s not to say that they don’t want things like pain medication or food (if they’re hungry) or something to drink (if they’re thirsty). They will still receive those things. They are simply telling the doctors and their loved ones that they do not wish to prolong their life by artificial means.
Where the Appointment of Health Care Representative and the Living Will Intersect
Your health care representative has a duty – under the Appointment of Health Care Representative – to enforce your wishes under your Living Will. In other words, your health care representative is your advocate in the health care system. He or she is there to make sure that your wishes under your Living Will are implemented. So if you’re intent on have a Living Will for yourself, it makes good sense to also have an Appointment of Health Care Representative in place as well.
These are documents that should be put in place well before a crisis occurs. In addition, you should talk to the person you intend to name as your health care representative so they understand your feelings about “end of life” decisions. Finally, it also makes sense to name a successor to your primary health care representative to make sure you have a back-up in the event that the first person is not around.
If you have questions about an Appointment of Health Care Representative or a Living Will in particular or advance directives in general, please don’t hesitate to call the estate planning attorneys at Cipparone & Zaccaro, PC. We’ll be happy to discuss those documents with you and how they can be used in your loved-one’s best interests.
