This article examines mechanisms you can use to ensure you receive the care you want, even if you are unable to communicate your wishes to others.
PLANNING FOR INCAPACITY: HOW TO CHOOSE WHEN YOU CAN'T CHOOSEMany do not know that estate planning includes more than simply creating a Will. Living Wills are often less thought of. Living Wills provide you with the opportunity to select what care, if any, you wish to receive in the event you are deemed medically incompetent or are suffering an end-stage medical condition which prevents you from communicating your wishes to others.
Pennsylvania's Probate, Estates and Fiduciaries Code (the Code) defines incompetence as well as end-stage medical conditions. Incompetence is determined by a health care provider when individuals are unable to understand benefits, alternatives and risks involved in a specific health care decision, inability to make such decisions on their own and the inability to communicate with others. On the other hand, end-stage medical conditions include incurable and irreversible medical conditions in advanced states which, in the opinion of the attending physician to a reasonable degree of professional certainty, result in death, despite medical treatment. In both situations, whether you are unable to communicate and where treatment only prolongs the process of dying, Living Wills provide you with the opportunity to choose how you want to be cared for. And if you want to revoke your Living Will at any time, you may do so in any manner regardless of your mental or physical condition. In such cases, Living Wills are effectively revoked upon communication to your health care provider.
Another estate planning technique closely related to executing a Living Will is the creation of a Health Care Power of Attorney. Generally, a Health Care Power of Attorney is used to appoint a Health Care Agent, someone who will make decisions for you in the event you become incapacitated. Other provisions include limitations you may wish to place on your Agent, your intent regarding beginning or discontinuing life-sustaining treatments, feeding tubes or any other form of nutrition or hydration, and any other specific provisions you may specify related to the implementation or withholding of health care treatments.
The Code outlines the requirements controlling who may make a Living Will and appoint a Health Care Power of Attorney. In both instances, an individual of sound mind may make a Living Will or Health Care Power of Attorney if the individual is 18 years of age or older, has graduated from high school, has married, or is an emancipated minor.
You may also appoint more than one Health Care Agent and also name Successor Agents to serve in the event your previously appointed Agent is no longer able to serve as your Health Care Power of Attorney. However, there are restrictions on your freedom to appoint. Your attending physician or other health care provider or any owner or employee of a health care provider in which you are receiving care cannot be appointed as Agents.
Your Health Care Agent is responsible for gathering information on your prognosis and acceptable medical alternatives regarding diagnosis and treatment. Health Care Agents are also responsible for making health care decisions in accordance with your instructions at the time you had capacity to understand, make and communicate such instructions to your Agent. In the absence of instruction, the law directs your Agent to make decisions based upon your known preferences, values, and you religious and moral beliefs.
In ClosingLastly, planning for incapacity not only controls the method and scope of medical treatment received while allowing you to appoint Agents to act on your behalf, it also saves your loved ones from making decisions that may or may not coincide with your own wishes. If you or a family member do not have a Living Will and have not considered appointing a Health Care Power of Attorney to act on your behalf, please contact me to discuss these and other options available to you before it's too late.
This article is not legal advice. Please seek legal counsel if you have any questions related to the issues raised in this article.