Ally Legal Planning

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On Behalf of | Apr 5, 2021 | Estate Planning - Estate Administration & Probate

What exactly is an advance directive?  In the simplest of terms, an advance directive is your way of retaining some control over decisions about your health care even after you no longer have the mental or physical capacity to do so.  This is accomplished by designating in writing who you want to act on your behalf as your health care agents and designating in writing your wishes with regard to the use of specific treatment if you are diagnosed with certain medical conditions. That is the purpose of the Advance Directive.

An Advance Directive typically contains three parts.  Part A is where you designate your health care agents, Part B is where you designate your wishes regarding treatment for end-of-life medical conditions, and Part C is where you designate your wishes concerning organ donation and funeral arrangements following your death.

            Part A: Appointment of Health Care Agent. Under Part A of your Advance Directive, you designate the person or people you would like to act as your health care agent to make health care decisions, including mental health care decisions, for you if you are unable to do so yourself.
For example, your agent is given the authority to review your medical records, to hire and fire doctors, to consent to or refuse care, treatments, services or procedures. You may also state any limitations to this authority that you may want to impose. Because everyone has unique health conditions, you should also discuss possible limitations with your doctor. While the authority granted to your agents is very broad, your agent is required to make decisions that are consistent with your wishes as stated in your Advance Directive or as otherwise made known to them.

            Part B: End-Of-Life Health Care Instructions (aka “Living Will).  Under Part B of your Advance Directive, you designate your specific preferences regarding the use of treatment to extend your life if doctors certify you are in an end-of-life medical situation (i.e. a persistent vegetative state, an end-stage medical condition or a terminal medical condition).  For example, you may address the use of artificial nutrition and hydration and whether or not you want any life sustaining measures taken (i.e. respirator, CPR, etc.) if this situation were to occur.

            Part C: Health Care Instructions Following. Under Part C of your Advance Directive, you may provide your preference for organ donation and specific funeral instructions.

The Advance Directive is a critical component of your overall estate plan.  It is the best method to legally communicate your preferences for health care treatment before you become incapacitated and are no longer able to do so for yourself.  In addition, by signing an Advance Directive and designating your health care agent, you avoid the need for a long drawn out and overly complicated guardianship proceeding that would otherwise be necessary to provide someone with the authority to make medical decision on your behalf.  The court will appoint someone based on what the law says and that person may not be the person you would have chosen for yourself.