Whom Do You Trust to Make Your Medical Decisions?
It might be a stretch to say that if you have your health, you have everything. However, to some
people, decisions about their health are arguably more personal in nature and more important to
their overall well-being than financial decisions.
This leads to the question of who will step in and make healthcare decisions for you if you are
incapacitated (unable to make or communicate your medical wishes). You may have estate
planning documents that allow someone else to manage your finances during a period of
incapacity. But have you also appointed someone to step in and manage your medical care
when you cannot make decisions or communicate your preferences on your own?
Without certain documents that allow you to control your future medical treatment in the event
that you become incapacitated, you could be at the mercy of the courts or medical professionals
who are bound by facility policies and procedures and end up receiving care that is different
from what you would have wanted.
Medical Directives and Estate Planning
Maybe you have created a will that names your beneficiaries or set up a trust to hold your
money and property for your loved ones. You have even thought of the little things, like property
appraisals, life insurance, digital assets, and pet provisions.
Your loved ones will be well taken care of when you are gone. But a comprehensive estate plan
is about more than that. It also involves ensuring that your loved ones can take care of your
medical decision-making as you would like them to while you are still alive but incapacitated.
This aspect of your estate plan is addressed with documents known as medical directives.
Medical directives are a series of legal documents that name a medical decision-maker and
describe how your medical care should be handled if an injury or illness prevents you from
making decisions or expressing your wishes. This could happen, for example, if you are under
anesthesia, suffer from dementia, or experience a medical emergency.
Two medical directives crucial for every estate plan are a medical power of attorney and a living
will.
- A medical power of attorney is a legal document that gives a designated person (referred
to as an agent or healthcare proxy) the authority to make or communicate healthcare
decisions for another individual (the principal) if the principal is unable to do so. These
decisions include consent to or refusal of treatments, surgeries, medication, and other
interventions. The agent can also access the principal's medical records and information as
needed for decision-making.
- A living will (also known as an advance directive) is a document in which you specify the
medical treatments you wish to receive - or not receive - at a future time when you are
incapacitated and unable to consent to treatment or refuse it. A living will often addresses
life-sustaining measures in terminal situations. However, living wills are not legally recognized in all states.
A medical power of attorney and living will should be written to complement each other. It is
important to understand the interplay between these two documents. In some situations, the
power of the agent under a medical power of attorney may be limited by any instructions the
principal outlines in their living will, and the agent may be unable to make decisions that
contradict those instructions. A medical power of attorney may contain healthcare instructions
as well.
A living will should clearly state someone's preferences for a number of end-of-life care
decisions that include CPR, ventilation, dialysis, medications, tube feeding, pain management,
and organ donation.
If these decisions are not addressed in the documents or the directives are unclear, the agent
can use their judgment to decide what they think is in the principal's best interests and aligns
with their values.
Most people choose an agent under a medical power of attorney who knows them well and
understands their values and preferences, but you should discuss intervention and treatment
choices with your trusted decision-maker(s) before their services are needed. Choosing
someone who will be available in case of an emergency is also important.
What Can Happen When There Are No Medical Directives
Your medical power of attorney allows you to choose a person or people to make decisions for
you if you cannot make them yourself. In other words, you are preauthorizing a stand-in to
provide informed consent on your behalf in the future when the need arises.
Without a valid medical power of attorney, the alternative - appointment of a court-ordered
guardian for someone lacking capacity - can be very problematic.
When choosing a guardian or conservator (the term may vary by state) for an incapacitated
adult who lacks a substitute decision-maker, the court considers a combination of the individuals
set forth under state law and the person's best interests, prioritizing close family members such
as a spouse, parent, or adult child. Once the patient is deemed incapacitated, the guardian or
conservator has full authority to make most or all decisions for the patient unless the patient
retains the capacity to make decisions.
While guardianship might seem like a reasonable solution to the issue of not having medical
directives, it is often too slow and cumbersome to respond proactively to a patient's immediate
medical needs. Also, guardianship proceedings are usually expensive: there will be court fees
and potentially attorney's fees if one is used (most states require that an attorney represent the
guardian or conservator throughout the case). Further, another drawback of guardianship
proceedings is the lack of privacy. Since these proceedings take place in court, much of the
information shared becomes part of the public record.
The bottom line is that relying on the appointment of a court-appointed guardian or conservator
is often considered by medical professionals and attorneys to be a last-resort option.
Take Control of Your Medical Future
When you do not have a medical power of attorney and a living will, someone else will still need
to make decisions about your healthcare. But who that person is - and what they decide - may
not accurately reflect your wishes.
Naming a stand-in decision-maker and stating your treatment preferences gives you some
control over medical circumstances that may otherwise be outside of your control. If you have
not yet named a medical agent or are having trouble identifying someone who is available,
willing, and able to serve in this role, an attorney can help. To take control of your medical future
today, reach out to us to schedule an appointment.
MEREDITH | PC
4325 Windsor Centre Trail
Suite 400
Flower Mound Texas 75028
214-513-1013
This newsletter is for informational purposes only and is not intended to be construed as written advice about a Federal tax matter. Readers should consult with their own professional Counselors to evaluate or pursue tax, accounting, financial, or legal planning strategies.
You have received this newsletter because I believe you will find its content valuable. Please feel free to Contact Me if you have any questions about this or any matters relating to estate planning.
