Planning for Incapacity:  Advance Health Care Directives

We do not want to contemplate a time when we are unable to make our own decisions due to a mental incapacity, but unfortunately one in seven people in America over the age of 70 have some form of dementia.  How do we protect ourselves, our spouses, our family, and our estates from the devastating consequences that arise when someone suffers from dementia?  One course of action is to have an effective estate plan that includes an Advance Health Care Directive.

Advance Health Care Directives in General

Advanced Health Care Decision-Making planning is a very important part of estate planning to ensure that health care decisions will be consistent with your philosophy, values, and wishes.  The foundation of health care decision-making lies in your right to make your own medical decisions, including your right to refuse medical treatments or to withdraw consent to treatment once begun.  This right to self-determination does not end if you become unable to make your own decisions.  An Advance Health Care Directive, which is the term used to describe a Health Care Powers of Attorney and Living Wills can ensure that your wishes are respected even if you become incapacity.

You must be of sound mind at the time you sign your Advance Health Care Directive.  Therefore, the time to execute an Advance Health Care Directive is now while you have the mental capacity to do so.

Health Care Power of Attorney

The Health Care Power of Attorney is a document that allows you to appoint someone else, an Agent, to make medical and personal care decisions on your behalf.  Your Agent must make decisions in accordance with specific instructions provided by you and those decisions are effective without court approval.  As such, the Health Care Power of Attorney spares your family and loved ones from the emotional and financial expense of guardianship.

Your Health Care Power of Attorney may express any limitations that you wish to impose upon the authority of your Agent and indicate your wishes regarding life-sustaining treatments, specifically in regards to any forms of artificial or invasive nutrition or hydration.  Your Health Care Power of Attorney may contain any provisions regarding how health care decisions should be made for you.

Your Agent does not have the authority to act under your Health Care Power of Attorney until it is determined by our attending physician that you are incompetent.  Incompetency, for these purposes, is defined by statute as a condition in which an individual, despite being provided appropriate medical information, communication supports, and technical assistance, is determined to be unable to understand the potential material benefits, risks, and alternatives involved in a specific proposed health care decision; is unable to make that health care decision; or is unable to communicate that health care decision to any other person.

Your Agent is authorized to make any decisions regarding your care, custody, and health care treatments that you could have made and exercised, if competent.  This authority may extend beyond your death for the purposes of making anatomical gifts, disposing of remains, and consenting to autopsies.

Your Agent is obligated by law to consult with your health care providers and to base decisions in the following order of priority: (1) In accordance with the Agent’s understanding and interpretation of your instructions; (2) in conformity with the Agent’s assessment of your preferences and values; and (3) in accordance with the Agent’s assessment of your best interests.

Living Will

The Living Will is a writing made in accordance with State law that expresses your wishes regarding life-sustaining treatments at the end of life.  A life-sustaining treatment as any medical procedure or intervention that, when administered to a patient who has an end-stage medical condition or is permanently unconscious, will serve only to prolong the process of dying or maintain the individual in a state of permanent unconsciousness.  An End-Stage Medical Condition is an incurable and irreversible medical condition in an advanced state that will result in death, regardless of medical treatment.  To be permanently unconscious means to be in an irreversible vegetative state or irreversible coma.

Your Living Will becomes operative only when your attending physician has determined that you are incompetent and that you have an end stage medical condition or are permanently unconscious.  Thus, a Living Will does not take the place of a Health Care Power of Attorney as it only provides authority over end-of-life decision-making.


The Health Care Power Of Attorney should be a part of every estate plan.  If you include your wishes regarding life-sustaining treatments at the end of life, you give your family a gift of certainty.  The Health Care Power of Attorney provides the best safeguard to ensure that you receive the medical treatments and only the medical treatments that you desire.