What are Advance Directives?

Advance directives are legal documents that allow you to spell out your wishes in the event that you are physically or mentally unable to express them.  They are a way to avoid confusion by telling your family, friends, and healthcare professionals exactly how you would like important healthcare and financial decisions dealt with.  Advance directives can also prevent family members from undergoing the stressful process of having to make difficult decisions on your behalf. Dealing with a serious illness or injury is extremely challenging, but having thoughtful advance directives in place can provide you with peace of mind that your wishes are being honored and your loved ones are spared from having to make the hard calls.

There are several different types of advance directives to help lay out your healthcare and financial wishes, including:

 

POWER OF ATTORNEY

A power of attorney is a legal document that grants a person the right to act on your behalf as an agent. The authority you grant to an agent depends on the specific language of the power of attorney. You may choose to grant the agent very broad power to make decisions or you may limit their authority to performing certain specific acts. However, a power of attorney terminates if you become incapacitated.  

What is a Durable Power of Attorney?

Unlike a regular power of attorney, a durable power of attorney (DPOA) remains effective even if you become incapacitated. The DPOA is a legal document that allows you, the principal, to designate a proxy or agent to make your medical and financial decisions if you become unable to do so.  It is important that you choose someone that you trust completely, as this person will handle critical medical decisions and have access to your financial matters. Your agent can speak with doctors and caregivers on your behalf and make decisions according to the directions you leave.  Your agent can also decide which medical treatments or procedures you receive. If your wishes in a certain situation are not known, your agent will decide based on what he or she thinks you would want.

It is important to talk to your agent and be sure that he or she is comfortable with this role.  If needed, this person will have to make difficult decisions at a time of great stress, pain, and uncertainty.  Also, be sure to discuss your wishes, in detail, with your agent so it is clear what is most important to you. It is also a good idea to name an alternate agent in the event that your first choice becomes unwilling or unable to act on your behalf. If you do not have a person in your life that you trust wholeheartedly with such important decisions, a Living Will may be a more appropriate advance directive option.  

 

LIVING WILL

A living will does not let you designate an agent or proxy to make decisions for you; instead, it documents in great detail the medical treatments that you want or do not want to be performed if you become terminally ill (cannot be cured) or permanently unconscious (often called a “persistent vegetative state”). A living will can describe under what conditions an attempt to prolong life should be started or stopped.  If there is hope of recovery, a living will generally does not apply.  

There are numerous things to think about when writing a living will, including:

  • How do you feel about the use of equipment such as dialysis machines or ventilators (breathing machines) to prolong your life?
  • Do you know how and when a “Do Not Resuscitate” order (instructions not to use CPR if breathing or heartbeat stops) is used?
  • Whether you would want IV fluid and/or nutrition (feeding tube) inserted if you are unable to eat or drink?
  • Whether you want treatment for pain, nausea, or other symptoms? (also called “comfort care” or “palliative care”)
  • Whether you want to donate organs or other body tissue after your death?

A living will is much more limited than a durable power of attorney. Although both apply when you are unable to make decisions for yourself, a living will takes effect only if you are in a persistent vegetative state (i.e. permanently unconscious) or terminally ill. The living will gives written instructions about certain things that might happen. But it can’t possibly cover every health care situation that could possibly arise, and it may not cover your situation when you need it. With most types of living wills, you can’t choose an agent or proxy to make decisions for you, and no one is appointed to be sure that your wishes are carried out. That’s why it is important to discuss which options best suit your needs with a skilled estate planning attorney.  

 

DESIGNATION OF HEALTH CARE SURROGATE

The Florida Designation of Health Care Surrogate allows you to appoint a surrogate to make health care decisions if you are unable to communicate your healthcare wishes to medical providers. A health care surrogate allows you to appoint someone who knows your preferences for medical treatment and is able to step in when the need arises. Similar to a Durable Power of Attorney, a Health Care Surrogate Designation grants power to an agent to make decisions for you in the case of incapacity, however, it limits the power to only medical decisions. Both documents are part of a comprehensive estate plan.

 

DESIGNATION OF PRE-NEED GUARDIAN

While you may be more familiar with terms like Power of Attorney and Living Will, a Designation of a Preneed Guardian is an equally important tool to know and to include in your life planning documents. The Designation of Pre-Need Guardian is often part of a comprehensive estate plan and becomes very important when used in combination with other advance directives.

A Pre-Need Guardianship allows you to designate someone to serve on your behalf in the event that you become incapacitated.   It is important to remember that the individual you select is aware of your wishes, and is prepared and willing to step into your shoes in the event that you are no longer capable of managing your own person or property. Once the court determines that you are incapacitated, and approves the named Pre-need Guardian, the guardian will assume the role and duties of guardian, and you become the ward.

The responsibilities of a Guardian can include:  

  • Considering the expressed desires of the ward
  • Allowing the ward to maintain contact with family and friends, unless harmful to the ward
  • Not restricting the physical liberty of the ward more than reasonably necessary to protect the ward from serious physical injury, illness, or disease.
  • Assisting the ward in developing or regaining capacity, if medically possible
  • Notifying the court if the guardian believes that the ward has regained capacity
  • Making provisions for the medical, mental, rehabilitative, or personal care services for the welfare of the ward.
  • Acquiring a clear understanding of the risks and benefits of a recommended course of health care treatment before making a health care decision.
  • Evaluating the ward’s medical and health care options, financial resources, and desires when making residential decisions that are best suited for the current needs of the ward

The role of a guardian can be an enormous undertaking. Consequently, the Designation of Pre-need Guardianship allows you to list multiple people, in order of preference,  as guardian in case someone becomes unwilling or unable to serve. Equally importantly, a Designation of Pre-Need Guardian also permits you to list anyone that you do NOT want to serve as your guardian. This provision can prove useful to prevent abuse from controlling family members or dishonest caregivers. By naming your own guardian you are essentially removing the incentive of outsiders to impose a guardianship over you because they either don’t agree with your decisions or want to control your assets.

Is Designating a Preneed Guardian the Best Overall Solution?

A guardianship is only authorized when the court cannot find a less restrictive option available.   Perhaps the needs of you and your family would be better achieved through the implementation of a Health Care Surrogate, a Trust, a Durable Power of Attorney or other advance directives as part of a well thought out estate plan. In other cases, a Preneed Guardian is a solid strategy.  Let’s say, for example, you are in a major car accident and become incapacitated.  The other driver is sued and his insurance provider pays $100,000 into a medical fund to cover all of your future medical expenses.  The court will most likely require a supervised guardian to oversee how that money is spent.  

 

DO NOT RESUSCITATE ORDER

“Resuscitation” means an attempt by medical staff to re-start your heart and breathing if it should cease, such as administering CPR. In some cases, medical staff may also use life-sustaining devices such as breathing machines. A “Do Not Resuscitate” order, commonly referred to as a “DNR” means that if your heart or breathing stops, the medical staff will not administer any treatment to keep you alive.

A DNR order allows for a natural death and is typically used by someone who is suffering from a terminal condition, end-stage condition, or is in a persistent vegetative state.  

What is the Difference Between a DNR and a Living Will?

A DNR deals specifically with the refusal of resuscitation in the event of cardiac or pulmonary arrest. It is a physician’s order, signed and dated. A Living Will deals with a broad spectrum of end-of-life related issues such as feeding tubes,  IV hydration, or pain management.

 

Explore Your Options with a Skilled Estate Planning Attorney 

Regardless of age or health, everyone should to take an opportunity to discuss their medical and financial wishes with family members and then put those decisions in writing with advance directives.  A serious accident or illness can happen suddenly. If you already have an advance directive, you can rest easy knowing that you are still in control over your own life and your family is spared additional worry during an already difficult time.  

If you or a family member is concerned about identifying a person to manage your affairs in the event that you can no longer do it yourself, consider consulting with the experienced estate planning team at Eldredge and Davis, P.A.  Our firm has been serving the estate planning needs of Flagler County for over 30 years. Call our office today for a free consultation.