Living Wills and Health Care Proxies

Living Wills and Health Care Proxies, sometime know as Medical Powers of Attorney, are vital aspect of an individual’s, couple’s or family’s estate plan. Many overlook these critical documents, but it may be at their own expense.

Why are these documents so important? – No estate plan is complete until it addresses unexpected medical crises which could leave someone alive, but in a compromised mental or physical condition.  Many people feel uncomfortable even thinking about these situations; however, they are exactly the reason why comprehensive estate planning is so important, including Living Wills and Health Care Proxies.

Without Living Wills and Health Care Proxies, a person may not be able to decide for themselves what medical decisions can be made about their condition or who can make them.guardianship, Gay Estate Planning, estate planning for same sex couples, estate planning law firms

What are Living Wills and Health Care Proxies – A Living Will is a witnessed and notarized document that states exactly what medical measures a person wants or does not want if a specifically outlined medical conditions arise.  It is important to note the Living Wills only apply to medical conditions which are terminal, with little or no hope of recovery.  If a doctor or hospital can get you better, they will use everything at their disposal to do so.  Living Wills address those situations where there is no hope for recovery, then you are empowered to decide what treatments a doctor or hospital to perform.

A Health Care Proxy, or Medical Power of Attorney, allows a person you designate to have access to medical records and make specified medical decisions for you. Comprehensive health Care Proxies will also allow the designated person to look into your medical file if needed to make the best decision.  This is accomplished by including a HIPAA (Health Insurance Portability and Accountability Act) waiver which authorizes hospital; and doctors to share your medical information with the proxy you have designated.

Other Considerations – It is also important to discuss with your Health Care proxy what your wishes are as defined in your Living Will.  You should never designate someone without first ensuring that they are capable of and comfortable with carrying out your end of life wishes.

If you do not have a Living Will and are unable to convey your wishes directly, a hospital has an obligation to keep you alive, whether that is your desire or not, unless your closest living legal relative (in most states) authorizes them otherwise.

The most noteworthy example of how not having a Living Will can become a nightmare was the Terri Schiavo case in Florida. Ms. Schaivo did not have a Living Will when she suffered a massive heart attack in 1995 and was declared by her doctors to be in a persistent vegetative state.  He husband petitioned the court to have her feeding tube removed and her parents opposed that petition.  In all, the Schiavo case involved 14 appeals and numerous motions, petitions, and hearings in the Florida courts; five suits in federal district court; extensive political intervention at the levels of the Florida state legislature, then-governor Jeb Bush, the U.S. Congress, and President George W. Bush; and four denials of certiorari from the Supreme Court of the United States. (procedural history courtesy of Wikipedia.)  All of this could have been prevented if she had a Living Will.

If you are incapacitated and cannot convey your wishes to a medical facility about your treatment, they will look to your Medical Power of Attorney. If you do not have one, the facility will look to your closest living legal relative for guidance.  This person may or may not be someone you wanting medical decisions for you.  The legal priority that must be followed in most states is a spouse, an adult child, a parent, a sibling, an adult niece or nephew, an aunt or uncle and finally, a first cousin.

Living Wills and Health Care Proxies are foundational elements of a person’s estate plan. These are also often the documents most critical to elderly individuals or those with preexisting medical conditions.

For more information about Living Wills and Health Care Proxies, or other healthcare documentation, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure you and your family’s future.

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Anthony Brown

Anthony Brown

Attorney and Advocate at Time For Families
Who am I? On the deepest level, I am blessed. I have an amazing partner, who I have known since 1989 and been married to since 2004. I am the donor dad of two beautiful daughters who have two moms who are equally amazing. My husband and I have expanded our family through surrogacy and have a seven-year old son. I have had three careers (acting, massage therapy and the law) and I am still discovering myself. I am the Board Chair of Men Having Babies. The one thing I know for sure is that life is about trusting your instincts. Family is an instinct.
Anthony Brown