Legal & Financial Planning

Why You Need an Advance Directive and Health Care Power of Attorney

Cameron Huddleston
Cameron Huddleston
January 19, 2023
Why You Need an Advance Directive and Health Care Power of Attorney

As you age, there might come a time when you are no longer able to make medical decisions on your own. It’s important for your loved ones to know what your wishes are before that time comes and to have a plan in place for someone else to make decisions for you.

That’s where an advance directive and healthcare power of attorney come in. These essential legal documents—along with a financial power of attorney—can help you and your loved ones be prepared if you ever need someone to make medical decisions for you.

What is an advance directive?

An advance directive is a general term for a legal document that lets you spell out in advance what sort of medical treatment you do or do not want if you can’t speak for yourself. A living will, for example, is an advance directive.

It can be used to address a variety of end-of-life care decisions:

  • Whether to allow artificially provided nutrition and hydration
  • Whether to allow ventilation if unable to breathe
  • Whether to allow life-prolonging treatment
  • Whether to allow comfort care and treatment to alleviate pain
  • Whether to allow your organs or body to be donated

Depending on the state where you live, you also might be able to include a do not resuscitate (DNR) order in a living will or advance directive. However, this can be a separate document.     

You should discuss end-of-life treatment options with your doctor before specifying what you do or do not want in an advance directive. Also remember that your living will should reflect your wishes and values.

When is an advance directive needed?

All adults should have an advance directive so there’s no confusion over what their medical care wishes are. It’s especially important that you put your wishes in writing before there’s any sort of health care emergency so your loved ones don’t have to guess what you want. That could lead to legal battles if your family members have different opinions about whether to keep you on life support.

Plus, you must be mentally competent to sign an advance directive. This document can't be drafted and signed if an accident or health issue has left you incapacitated.

What is a health care power of attorney?

Another component of advance health care planning is naming someone to make medical decisions for you if you are unable to yourself. You can do this in a living will or in a separate document called a healthcare power of attorney. The person you name as your agent to make decisions for you is called a healthcare representative, surrogate or proxy.

Even if you have an advance directive that spells out what sort of medical care you do or do not want, it’s important to have a healthcare power of attorney. Not all situations can be anticipated in an advance directive. So you need someone you trust to make any decisions you haven’t already made.

Plus, your healthcare agent can have the power to admit you into a hospital or nursing home, to speak with your doctors about treatment and to gain access to your health information that might otherwise be protected by the Health Insurance Portability and Accountability Act (HIPAA).

Even if you have an advance directive that spells out what sort of medical care you do or do not want, it’s important to have a healthcare power of attorney.

To be clear, a healthcare power of attorney doesn't give your agent the authority to overrule the directives in a living will. For example, if you specify in a living will that you want to be allowed to die naturally but your healthcare agent wants you to be on life support, that person can use his or her power as your healthcare surrogate to authorize life-prolonging treatment.

It’s especially important that you name a healthcare surrogate if you don’t want to spell out end-of-life wishes in an advance directive. If you don’t name someone to make decisions for you, someone you don’t want making those decisions could step into the role. A court could even appoint a guardian to make health care decisions for you if you are incapacitated.

How to create advance directive and healthcare power of attorney documents

You can work with an elder law or estate planning attorney to draft these and other estate planning documents. However, even attorneys say that it’s OK to use a downloadable, fill-in-the blank advance directive and health care power of attorney documents.

The American Bar Association offers a free health care power of attorney form that is valid in every state except Indiana, New Hampshire, Ohio, Texas and Wisconsin. If you live in one of those states, you can check with your state bar association, state department of health or even your doctor to see if a free form is available.

The American Bar Association also provides links to state-specific advance directive forms. Aging With Dignity offers a Five Wishes advance directive that’s valid in most states for $5. It includes a guide to help with end-of-life treatment decision making.  

Once you have these documents, give copies to your healthcare providers. Also give copies to the person or people you named as your healthcare surrogate. A safe and easy way to keep these and other legal documents organized is to use a digital vault. For example, you can upload copies of your advance directive and healthcare power of attorney to the Carefull Vault, which gives you the option to give trusted family members view-only access to these documents.

[ Keep Reading: Why You Need a Will or Trust ]

Cameron Huddleston

Cameron Huddleston

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