What is a health care directive and how does it affect my rights?
Dear Senior Legal Line,
My kids are encouraging me to get a health care directive. I am in my early seventies, but I take care of myself and I am in good health. I have not gotten a health care directive yet because I’m worried that it will take away my rights to make decisions about my own health. Can you explain what a health care directive really means?
A Health Care Directive (HCD) is a legal document that gives you advance decision-making power about your health care. Your question said you are worried that it will take you decision-making power away. The opposite is true. The HCD is yours – it is a writing that is all about your wishes, not anyone else’s. A HCD is a plan for the worst-case scenario, when you no longer can communicate or understand your healthcare options. Until that happens, you call the shots. When the HCD is triggered, you still are calling the shots because you’ve either named someone to make decisions for you the way you want them and/or written down your wishes and instructions. It’s a way that you can keep some control over your life and let others know what you want. If you don’t have a HCD and you become unable to communicate or understand your options, then other people will decide for you. While having a HCD is essential for all adults, in my opinion, it is even more essential if you are not married or if you have family members who may try to insert their own wishes into your healthcare decisions or fight amongst themselves about your care. In a HCD you can give instructions about your health care and/or you can name a “Health Care Agent”. The HCD helps ensure that your care is what you would have wanted, not what others may want.
First, I want to assure you that your instructions and your agent’s decision-making power only kick in when you lose the ability to participate meaningfully in your health care. More about this later in this article.
You do not have to include instructions in a HCD. If you do, these will help guide your agent (if any), your health care providers, and your family in making health care decisions for you that are true to what you want.
Health Care Agent
You do not have to name an agent in a HCD. If you decide to, you can choose who your agent will be. Some likely candidates are those who want to do it, will do what you want, and will stand up for your wishes. You can name more than one agent, though your HCD should then also say if your agents must make decisions together or if they can decide independently. Most importantly, the HCD should be written to avoid deadlocks or ties amongst your agents. For example, most people have a primary agent and encourage the primary agent to talk with the other agents, if possible, but does not make that input necessary. If your HCD kicks in, your agent must make health care decisions for you based on the following: 1) the instructions you include in your HCD (if any); 2) wishes you made known to your agent; or 3) your best interests, if you have not given instructions or made your wishes known.
The usual powers a health care agent has are: 1) consent, refusal, or withdrawal of treatment; 2) stopping or not starting care to keep you alive; 3) choosing your providers and where you get care; 4) deciding if you will live at home, in a nursing home, or in hospice; 5) seeing your medical records and giving them to others; and 6) visiting you if you are in a health care facility. You can choose to limit these powers. You can also choose to give your agent more powers, such as donating your organs or what will happen to your body after your death. You can even give your agent permission to make health care decisions for you even if you can still make decisions yourself. Any limits or additions you want for your agent’s powers must be written into the HCD.
It is important to talk to your agent about your wishes, especially if your HCD does not include instructions. Making health care decisions for a loved one can be confusing and stressful, but you can lighten some of that stress in advance by making sure your agent knows what you want. You may want or need to have this conversation more than once, if your health changes or if you change your mind about your wishes. Of course, you may need to update any instructions in your HCD for the same reasons.
When a Health Care Directive goes into effect
A HCD is usually “triggered” by your doctor’s determination that you cannot meaningfully participate in your health care - if you cannot make decisions, you cannot understand your options, and/or you cannot communicate. It is also possible to specify in your HCD when you want your agent to take over.
It is possible for a HCD to go into effect temporarily. If you lose, but later regain, your decision-making abilities, your HCD would no longer be in effect. This does not mean you would have to make a new one; it simply means that your doctor would ask you what you want instead of looking to the HCD for guidance. The HCD would be “tabled” in case it would be needed again later.
Revoking or Changing a Health Care Directive
A HCD is a legal document, but you are in control of it. You can revoke it by destroying it, writing a statement that you want to revoke it, or verbally stating in front of two witnesses that you want to revoke it. The two witnesses do not have to be present in front of you at the same time. You can also revoke a HCD by making a new one – give a copy to those that have your old one. If you decide to destroy or replace your HCD, you should be sure to destroy all copies of the one you want to revoke. You should also make sure your health care providers update their records. A HCD is also revoked if you get divorced (and your spouse is your agent – unless in the HCD you specifically say that it continues if you get divorced). It also is revoked upon your death, except for any specific powers or instructions you made regarding your body after death.
Making a Health Care Directive may feel like giving up control of a major part of your life – your health care. Keep in mind that a HCD is a form of advance planning. It does not actually go into effect unless your health condition or ability to communicate trigger it, and your doctor is the one to make that call. Many people choose to think of a HCD as a gift to their loved ones. A health crisis or loss of abilities can be emotionally very difficult for loved ones, who may have trouble making decisions under the circumstances. A HCD offers them guidance, frees them from doubt and guilt, and can help keep families strong by eliminating squabbles over what they think you would want to happen. A HCD is also a gift to yourself because you are helping to ensure that your wishes are followed – in that way, you are keeping control over your healthcare when you no longer can communicate or understand your healthcare options.
If you decide that you want a HCD, you could make your own. However, many forms exist – look at some and use the one you like best. There are short ones and longer ones to suit your needs. The basic requirements are: it must in writing; it must include your name and the date; it must be signed in front of a Notary Public or be witnessed by two people; and it must name one or more agents and/or give health care instructions. I recommend you use a pre-made form to make sure you don’t miss anything. You can find a do-it-yourself form here on LawHelpMN: Health Care Directive Do-It-Yourself Form.
Senior Legal Line is a legal question and answer line for Seniors.
The column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact the Legal Aid Service of Northeastern Minnesota with questions for legal help by writing to: Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprints by permission only.