This is a brief guide to the requirements for creating a valid Health Care Directive in Minnesota.
A Health Care Directive in Minnesota is a legal document that allows you (the Principal) to express your health care wishes if you are unable to do so yourself. A Health Care Directive is only valid while the Principal is alive.
In Minnesota, Health Care Directives were formerly known as Living Wills, Durable Powers of Attorney for Health Care, or Health Care Powers of Attorney. Some states still refer to Health Care Directives by those names. In Minnesota, we now call them Health Care Directives.
The Components of a Health Care Directive
There are typically three parts to a Health Care Directive.
Part I: This is the part where you name a Health Care Agent.
Part II: This section allows you to specify treatment and care instructions.
Part III: HIPAA Waiver - allows your Health Care Agent to access your medical records.
In order to create a valid Health Care Directive, you need to either name a Health Care Agent (Part I) or specify a health care instruction (e.g. your treatment and care instructions) (Part II). This must be done in writing and it must have the Principal's name included in the writing (e.g. you must identify whose Health Care Directive it is).
The next step is to sign the Health Care Directive in front of either (1) a notary public; or (2) two witnesses.
You may list multiple agents in Part I. All of your agents must be 18 years of age or older. Who cannot be your Agent: Anyone under 18 years of age may not be listed as your Health Care Agent. Your attending physician may not be your Health Care Agent unless that physician is related by blood, marriage, adoption, domestic partnership or unless you specify in your health care directive that you want your attending health care provider to act as agent and your reasons for doing so. Lastly, an individual who has been appointed to determine whether you are incapacitated may not serve as your health care agent.
Duties of Your Health Care Agent
Your Health Care Agent has a duty to "act in good faith." Your Agent must act consistent with any directions found in your Health Care Directive. If the information contained in your Health Care Directive is insufficient, the Agent must act in your best interests. "Best interests" means a consideration of your overall health condition, your prognosis, and your personal values to the extent they are known by the Agent.
Optional Provisions for Your Health Care Directive
Optional provisions you may include in your Health Care Directive are: (1) instructions regarding whether you wish to be buried or cremated; (2) your wishes concerning whether to donate organs; or (3) a funeral directive that directs the preparation for, type, or place of your final disposition.
What to Do with Your Valid Health Care Directive
Once you have signed your Health Care Directive in front of a notary or two witnesses and you have provided for some instructions regarding your health care or named an Agent (or both), you have a valid Health Care Directive.
What should you do with your valid Health Care Directive? Make sure that your health care provider has a copy of your Health Care Directive. You should also give a copy to your Health Care Agent, family members, assisted living facility, or any other important care giver in your life.
This guide is not intended as a substitute for the expert guidance of an attorney. While it may be tempting to try a do-it-yourself Health Care Directive, you should always seek the guidance of an experienced estate planning attorney. An experienced estate planning attorney can help you with choosing the right Health Care Agent and with the proper wording of your instructions. These items can be critical to ensuring that your wishes are followed.
Additional resources provided by the author
For more information and resources on Health Care Directives in Minnesota, the Minnesota Attorney General’s website has helpful information including sample forms:
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