According to the Law: To Make Your Wishes Stick, You Need Complete Advance Directives
By Laura D. Cooper, Esq.
Every competent person has a legal right to make decisions about his or her own medical care, including whether to accept or refuse care. Unfortunately, illness may make it difficult or impossible to exercise that legal right. A person can become temporarily or permanently legally incompetent to make decisions. So here are some important things to consider:
A person who has been judged legally incompetent does not lose the right to make a decision; rather, the person loses the legal ability to carry out personal wishes because he or she has been judged legally incompetent to make decisions that reflect those wishes.
To make matters more difficult, should you become legally incompetent, healthcare providers do not need to abide by your decisions if they conflict with the healthcare providers' professional judgment.
The way to enforce your wishes about future medical-care decisions is to make them in advance and place them in a legally enforceable "advance directive" document. Then, healthcare providers can be directed by your wishes, whether they agree with them or not.
What is an advance directive?
An advance directive is a document in which a competent person states medical decisions for the future. Advance directive requirements vary greatly from state to state, and we advise you to consult an attorney when creating your plan. Before you begin, you should understand that there are two types of advance directives available:
A living will contains written directives to healthcare providers.
A healthcare proxy or "power-of-attorney for healthcare decision making," in which you designate a person who will be sympathetic to your desires in medical decision making to act as your agent if you are incapacitated.
Many standard legal forms for advance directives contain only one of these two types. It is highly recommended that you have both for two important reasons:
A living will establishes certain treatment guidelines that are to be followed in the future.
A healthcare proxy doesn't establish guidelines directly. Instead, it appoints a trusted person to make decisions for you if you cannot make them for yourself.
Because it is almost impossible to predict all the circumstances that might arise during a future illness, it is difficult to create a living will that addresses every possible situation. By acting on your behalf, the healthcare proxy preserves your right to self-determination no matter what circumstances arise.
But my family knows my wishes
If you become incapacitated and you don't have specific advance directives, your family members will generally be deemed the appropriate decision makers. Most courts agree that family members are the appropriate decision makers.
But, without an enforceable healthcare proxy in place, a healthcare professional who questions the good faith or intentions of family members or strongly disagrees with their medical decisions will not follow the family’s wishes.
If, however, a family member has been made your healthcare proxy, healthcare providers must treat those decisions as if you made them yourself. They will not be able to deviate from them just because they may happen to disagree. Thus, proxies are critical tools, especially for anyone whose values differ from those of the healthcare community.
A healthcare proxy is not a surrogate
An important distinction must be made between a proxy and a surrogate.
A proxy, designated by advance directive, was directly appointed by the person before he or she became incapacitated.
A surrogate is legally appointed by someone else. Surrogates may be empowered by court appointment — or by a legal relationship such as marriage or kinship — that automatically gives the right to make decisions. However a surrogate may not be able to enforce decisions.
Examples of this often arise in quality-of-life decisions. Quality-of-life decisions by healthcare proxies are almost invariably followed. Quality-of-life decisions made by surrogates are often closely scrutinized by others to make sure they conform to the incapacitated person's wishes or best interests, as interpreted by a healthcare professional.
Clearly, the best way to ensure that your personal wishes are not overridden is to draw up a complete set of legally enforceable advance directives, including both living will and healthcare proxy documents.
The healthcare proxy document can incorporate provisions of the living will, requiring the person you name to follow any directives stated in your living will.
The living will document can also incorporate the healthcare proxy, in which case the authority of your proxy would be limited by any conditions you have spelled out in your living will.
Whether you decide to create one legal document or two, be sure you have both living will and healthcare proxy protections.