Health Care Directives – Essential Medical Care Instructions
Health Care Directives are important legal documents that determine how medical care is provided to you if you are not able to make those decisions yourself. Specifically, a Health Care Proxy or Health Care power of attorney empowers your Health Care Agent to make medical care decisions for you. Alternatively, a Living Will is a set of your instructions that governs your medical care. These instructions are also called advance medical directives. These health care directives do not expire until you revoke them, so they will be effective for the duration of your lifetime.
Doctors and medical providers must honor these Health Care Directives. If you do not have a Living Will or Health Care Proxy, medical providers and hospitals will be looking to the closest relatives to make the health care decisions. These may not be the people you would have chosen for this task, and they may be apprehensive and hesitant about making end-of-life decisions for you. That is why your should discuss these important documents and sign them with an attorney while you are in good health.
State statutory law usually governs Health Care Directives. In Pennsylvania, it is Title 20 Chapter 54 (20 Pa.C.S. Ch. 54). Pennsylvania also has a separate statute for mental health care and powers of attorney. Title 20 Chapter 58 (20 Pa.C.S. Ch. 58). However, if you sign a Health Care Proxy and Living Will in Pennsylvania, you do not need a separate mental health care power of attorney. In New York, Public Health Law of the State of New York Article 29-C governs Health Care Proxies. Living Wills are not codified in the statutes or health laws in New York, but the Living Wills are still widely recognized through common law and court precedent.
Powers of an Agent Under a Health Care Proxy
The agent under a Health Care Proxy can make decisions for someone when he or she cannot understand, make or communicate a choice regarding a health care decision as determined by their doctor. You can give your Agent the broadest powers available under the Health Care Proxy, or you can limit those powers using your own instructions. Some of the agent’s authority include the powers:
- To authorize, withhold or withdraw medical care and surgical procedures.
- To authorize, withhold or withdraw nutrition (food) or hydration (water) medically supplied by a tube (tube feeding).
- To authorize admission to or discharge from a medical, nursing, residential or similar facility.
- To make agreements for the care and obtain health insurance for the care.
- To hire and fire medical and other support personnel responsible for the care.
- To carry out the person’s wishes regarding funeral and burial arrangements.
- To take legal action to implement what the person directed.
Health Care Proxy Versus a Living Will
There are two basic types of Health Care Directives. The Health Care Proxy allows you to designate an agent who can make important health care decisions for you if you are unable to make them yourself. The Health Care Proxy does not function if you are conscious and able to make your own health care decisions. Your physicians and other health care providers will honor your decisions if you are able to make and communicate them.
However, a person who is permanently unconscious or suffered a traumatic brain injury or a stroke, for example, may not be able to make those decisions anymore. The agent can then make the decisions of whether the person is supported by breathing ventilators or other medical machinery. The agent will decide whether aggressive and invasive medical care is provided in case of an end-stage medical condition. That decision comes only in cases of irreversible trauma or terminal disease. If a person needs a ventilator because of pneumonia or COVID, they will receive the medical care that they need to make them better.
A Living Will is another type of Health Care directives. It should not be confused with the Last Will and Testament. That document governs the disposition of the person’s assets after their death but not the health care during their lifetime. The Living Will is a set of instructions on whether the person wants to receive life-sustaining treatment. That includes tube feeding and other medical care in case of an end-stage medical condition or terminal illness that would result in death or permanent unconsciousness. If you do not wish to burden anyone with the decision about your medical care, you can leave your instructions in the Living Will.
Health Care Directive Variations
The law and the documents vary state by state. Therefore, it is important to discuss them with a knowledgeable attorney who can explain the differences. For example, in New York, you can sign a Health Care Proxy or a Living Will, which are separate documents. Some people chose to sign both, but you need to ensure they do not conflict with each other. Conversely, in Pennsylvania the Health Care Proxy and the Living Will are one unified document that you should sign together. Pennsylvania Health Care directives include a HIPAA (Health Insurance Portability and Accountability Act of 1996) authorization. The HIPAA authorization will enable your agent to receive and review your medical care information. That will allow them to make an informed decision about your medical care. You can also enable your Agent to change the instructions in the Living Will if you give them that authority.
There are other documents available for Health Care decisions if you do not already have a Health Care Proxy or Living Will. Doctors or other medical professionals usually help sign those specific documents. Examples include a POLST (Physician Order for Life-Sustaining Treatment), including a do-not-resuscitate (DNR) order. Only a medical professional can help you sign those documents. However, if you are sick in a hospital, you may not understand all implications of such an important document. That is why it is wise to discuss Health Care Directives with an attorney beforehand. The attorney can prepare them for you and supervise their signing.
Selecting a Health Care Agent
You must trust the person you are appointing your Health Care Agent because they may need to make end-of-life decisions for you. Usual health care agents are the spouses, children and grandchildren of a person. However, appointing other relatives and even friends is also common. When you appoint a health care agent, you must be certain that they will have the resolve to make difficult decisions about your health care. Your doctors or any other health care providers should not be your agents, unless they are also your relatives.
You should typically appoint one primary Health Care Agent and a successor Agent in case the primary Agent is unavailable, cannot act or is unwilling to act. You should not appoint two people to act jointly (at the same time) as your Agents. That is because they may not make a necessary medical decision if they do not agree. This may negate the purpose of signing a Health Care Proxy in the first place. If the decision is not timely made, the doctors, hospitals, and health care providers may take the life-sustaining steps that you would not want them to take. The steps may include surgery, antibiotics, cardiac and pulmonary resuscitation, respiratory support, blood and blood product transfusions, dialysis, chemotherapy, radiation therapy, invasive diagnostic tests and tube feeding.
Lack of Advance Directives May Cause Problems
If a person becomes permanently unconscious or incapacitated, that person is not legally able to sign Health Care Directives. To get authority over that person’s medical treatment and living arrangements, you may need to file a Guardianship proceeding. That includes instances when placement in a skilled nursing facility is necessary. In Pennsylvania, the process is in Orphans Court under Title 20, Chapter 55, Incapacitated Persons. In New York, it is in the Supreme Court under Article 81, Mental Hygiene Chapter 27, Title E. The process is complicated and time-consuming, and you will need an attorney to handle it. The process involves the preparation and filing of a petition, collection and submission of medical documents, multiple court appearances, appointment of court attorneys and evaluations, and possibly testimony of medical experts. Even after a Guardian of the Person is appointed, the Guardian is still responsible to the court for numerous reports.
Contact Us
It’s important to remember that your Agent under the financial Power of Attorney cannot make health care decisions for you. You must sign a Health Care Proxy to appoint someone to do that. In summary, anyone who is over the age of 55-60 years old should have valid Health Care Directives. Your attorney will guide you through the process and help you avoid mistakes.
For more information on different options available to you and to avoid Guardianship proceedings through effective estate planning, contact Health Care Directives lawyer Leonid Mikityanskiy at our Southampton, PA office at 215-357-1400. We will help you protect your loved ones with attention, confidence and care.