Typically, estate planning focuses on the client’s assets. However, planning for incapacity and end-of-life medical care is just as important as planning for the distribution of assets. An Advance Directive for Health Care (“Advance Directive”) is an essential component of incapacity planning. Its purpose is to recognize your right to control some aspects of your medical care and treatment. An Advance Directive often includes the appointment of a health care proxy, living will and directions for organ donation.

Who Can Make Medical Decisions on My Behalf?

A healthcare proxy is an individual you appoint to make medical decisions on your behalf if you become unable to communicate your wishes or make healthcare decisions for yourself. It is important to understand that a healthcare proxy can make decisions regarding life-sustaining treatment and artificially administered food and water. However, these decisions must be in accord with your wishes as stated on your living will.

You may appoint a primary healthcare proxy, as well as first and second alternates. However, you are not limited to naming only one individual or a specific number of alternates. There are generally two ways to structure these appointments.

The first method is the tier method, where individuals are designated in a specific order of priority. For example, you may name your spouse as your primary healthcare proxy, your adult child(ren) as first alternate as the person who steps in if your spouse is unavailable, and your second alternate as the person who acts if neither the primary nor first alternate can serve. This is a common approach to healthcare decision-making.

At our firm, we often encourage clients to consider the co-primary healthcare proxy method, where two or more individuals are appointed as primary healthcare proxies and are authorized to act independently. This allows any one of the appointed individuals to make healthcare decisions when needed without requiring proof that another named proxy is unavailable or unable to act. This approach can help avoid delays and ensure that necessary medical decisions can be made as quickly as possible.

Can My Loved Ones Pull the Plug?

The living will portion of an Advance Directive allows you to express your wishes regarding life-sustaining treatment in the event you are unable to communicate your decisions. Specifically, you may provide instructions about whether you wish to receive artificially administered nutrition (food) and hydration (water) (i.e., feeding tube into your stomach) if you are terminally ill, permanently unconscious, or have an end-stage condition, such as advanced Alzheimer’s disease or dementia.

A living will becomes relevant when two conditions are met: (1) two physicians determine that you are not expected to recover or improve within the next six months, and (2) you are unable to take food and water by mouth. This portion of an Advance Directive is often described as the “plug or unplug” decision or the question of quality of life versus quantity of life.

Regardless of how you view this decision, completing a living will is an important step in ensuring your healthcare wishes are known and respected. When these circumstances arise, families are often faced with difficult and emotional decisions. Having a written document that clearly states your wishes can provide guidance and relieve loved ones from the burden of making such decisions on your behalf.

Without a living will, state law may determine how these decisions are made, which could result in life-sustaining treatment and artificially administered nutrition and hydration being continued. It is important to understand that choosing not to prolong life through artificial means does not mean abandoning care. You will continue to receive appropriate medical treatment, including pain management and comfort care. Additionally, if there is a reasonable possibility of recovery, medical professionals will continue efforts to provide treatment and improve your condition.

Can I Be Specific When Donating My Organs?

In the Anatomical Gifts section of your Advance Directive, you can provide instructions regarding organ and tissue donation. This section allows you to specify how you would like to donate and what you would like to donate after you pass.

There are four primary options for how your donation may be used. The first option is transplantation, which allows organs, tissues, or body parts to be donated to help another living person in need of a transplant. The second option is therapy, which involves donating organs, tissues, or body parts for the development of medical treatments, therapies, or medicines designed to help treat diseases and medical conditions rather than for direct transplantation. The third option is donating to a medical school for educational purposes, and the fourth option is donating to a dental school for educational and training purposes.

The second decision involves determining what you would like to donate. You may choose to donate your entire body or designate only specific organs, tissues, or body parts. If you have personal beliefs or preferences regarding certain donations, you may select only the organs or body parts you are comfortable donating by indicating your choices on the form. If you are willing to donate without limitation, you may choose to donate your entire body.

Completing this section allows you to make your wishes known in advance and provides clear guidance to your loved ones and medical professionals regarding your organ donation decisions.

What Happens If I Don’t Have an Advance Directive?

If an individual does not have an Advance Directive in place, their loved ones may be required to pursue court-supervised guardianship proceedings to obtain authority to make medical and daily care decisions on behalf of their incapacitated family member. For more information about adult guardianship, please see our article, “What Happens to Me and My Property if I Can’t Make Decisions? Understanding Adult Guardianship.”

Conclusion

If you would like to discuss your estate planning goals, please contact Riseling & Rhodes, P.C. to schedule a meeting with one of our attorneys. You may call our office directly or submit a meeting request through our website, and our team will be happy to assist you.