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Step 1 of Creating an Estate Plan: Advanced Health Care Directive

Aug. 8, 2016

For those new to the estate planning process, a logical question may be where to start. Ultimately, a comprehensive estate plan should include a variety of documents. At a minimum, a typical plan might include an advanced health care directive and durable power of attorney, a will, a revocable trust, and a financial power of attorney. In this four-part blog series, we’ll look at each of these documents in turn.

The advanced health care directive and durable power of attorney for health care are really two separate functions. The directive is designed to communicate an individual’s wishes regarding life support when he or she is no longer able to. When coupled with a durable power of attorney, any medical decisions not contemplated by the directive can be made by the designated agent.

As background, the U.S. Supreme Court has held that U.S. citizens do have the right to accept or decline a life support machine. However, this preference should be expressed in writing. Otherwise, doctors will continue to do everything possible to continue an individual’s life, even if that means an indeterminate period on life support.

A health care directive and durable power of attorney can be quite specific, indicating when an individual would like his or her designated agent to step in and start making decisions, including the decision to refuse treatment. Otherwise, an individual’s doctor would determine when the agent should step in.

The documentation can also grant the agent access to medical records, perhaps even if the individual is not incapacitated. Due to federal laws like the Health Insurance Portability and Accountability Act, this feature is quite powerful. Having copies of an individual’s medical records on hand might save time and be of use in an emergency.

Source: FindLaw, “Health Care Directives: Is there a Duty to Follow Them?” copyright 2016, Thomson Reuters