What You Can Cover in Your Health Care Documents

April 3, 2018
/ Estate Planning (Wills and Trusts), Probate/Estate Administration
/ By Cona Elder Law

by Shae Irving

An overview of some important medical issues you'll face when preparing a living will and a power of attorney for health care.

When creating your living will and your durable power of attorney for health care, you have many options and a great deal of flexibility. Following are some issues you may want to consider.

Your Living Will

Your living will (health care declaration) is the place to write out what you do and do not want in terms of medical care if you are unable to speak for yourself. You don't need to become a medical expert to complete your document, but it will help you to become familiar with the kinds of medical procedures that are commonly administered to patients who are seriously ill.

Life-Prolonging Medical Care

In most states, living wills ask you whether or not you want to receive life-prolonging treatments at the end of life. Such procedures typically include:

transfusions of blood and blood products
cardiopulmonary resuscitation (CPR)
diagnostic tests
dialysis
administration of drugs
use of a respirator, and
surgery.

If you want more information, you can discuss these treatments with your doctor or a patient representative at a hospital or health insurance plan office, or you can turn to self-help resources for more detailed information.

Food and Water

If you are close to death from a serious illness or permanently comatose, you may not be able to survive without the administration of food and water. Unless you indicate that treatment should be withheld, doctors will use intravenous (IV) feeding or tubes to provide you with a mix of nutrients and fluids. IV feeding, where fluids are introduced through a vein in an arm or a leg, is a short-term procedure. Tube feeding, however, can be carried on indefinitely.

Permanently unconscious patients can sometimes live for years with artificial feeding and hydration without regaining consciousness. If food and water are removed, death will occur in a relatively short time due to dehydration, rather than starvation. Such a course of action generally includes a plan of medication to keep the patient comfortable.

When you make your health care documents, you can choose whether you want artificially administered food and water withheld or provided. This decision is difficult for many people. Keep in mind that as long as you are able to communicate your wishes, by whatever means, you will not be denied food and water if you want it.

Palliative Care (Pain Relief)

If you want death to occur naturally -- without life-prolonging intervention -- it does not mean you must forgo treatment to alleviate pain or keep you comfortable. This type of care, sometimes known as "comfort care" is now more commonly called "palliative care."

Rather than focusing on a cure or prolonging life, palliative care emphasizes quality of life and dignity by helping a patient remain comfortable and free from pain until life ends naturally. Palliative care may be administered at home, in a hospice facility, or at a hospital.

You may wish to spend some time educating yourself about palliative care. You can include your feelings and preferences about such care in your living will.

DNR Orders

Some people who do not wish to receive life-prolonging treatment when close to death -- most likely those who are already critically ill -- may also want to prepare a "do not resuscitate" order, or DNR order. If a medical emergency occurs, this form alerts emergency personnel that you do not wish to receive cardiopulmonary resuscitation (CPR).

If you are in the hospital, your doctor can add a DNR order to your medical record. If you are not hospitalized, you can make what's called a "prehospital DNR order," to alert paramedics who come to your home or care facility. In addition to preparing a prehospital DNR order, you should also obtain an easily identifiable Medic Alert bracelet, anklet, or necklace. If you think you might want to make a DNR order, talk to your doctor or a hospital representative.

Your Durable Power of Attorney for Health Care

You can use a durable power of attorney for health care to name someone (your health care agent) to oversee your health care wishes and make any necessary medical decisions for you. You can give your health care agent as much or as little power as feels comfortable to you. Most people give their health care agent comprehensive power to supervise their care.

Recognizing this, the power of attorney forms for most states give your agent the authority to make all health care decisions for you unless you specifically place limits on that authority in the document. This means that your agent will normally be permitted to:

consent or refuse consent to any medical treatment that affects your physical or mental health (there are usually exceptions to this rule for situations such as extreme psychiatric treatments and termination of pregnancy, and your agent is not permitted to authorize any act that violates the wishes you've stated in your living will)
hire or fire medical personnel
make decisions about the best medical facilities for you
visit you in the hospital or other facility even when other visiting is restricted
gain access to medical records and other personal information, and
get court authorization, if required to obtain or withhold medical treatment, if for any reason a hospital or doctor does not honor your living will or the authority of your health care agent.

Organ Donation and Body Disposition

Most of your agent’s authority under a durable power of attorney for health care will end upon your death. In an increasing number of states, however, you can give your agent permission to oversee the disposition of your body, including authorizing an autopsy or carrying out your wishes for organ donation. If you want your agent to have these powers, you should say so in your power of attorney document.

If you have specific wishes about these matters, your living will is a good place to write them down. Your agent is legally required to follow your instructions whenever possible.

Limiting Your Health Care Agent's Authority

Keep in mind that as long as you are able to understand and communicate your own wishes, your agent cannot override what you want. Your agent steps in only if you can no longer manage on your own.

In addition, as mentioned, you are permitted to restrict your agent's authority in any way that you like. For example, some people give their health care agent only the authority to carry out the health care wishes specified in their living will, and not to make other medical decisions for them.

Think carefully, however, before you add limiting language to your power of attorney. One of the most important reasons for appointing a health care agent is so that someone will be there to respond to the needs of your situation as it develops. Your medical needs may change in ways that you cannot now foresee, and an agent who has full power can act for you no matter what the circumstances.

Choosing Your Health Care Agent

If you need help picking the right person to oversee your medical care, see Choosing Your Health Care Agent.

About the Author Cona Elder Law

Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.