As a lawyer who does a lot of work for hospitals, I am often contacted to discuss sad situations in which hospital patients can't make decisions for themselves, and there is confusion or uncertainty regarding who can make decisions for them. Had one of those calls today.
I wouldn't get any of these calls if these patients had signed advance directives. If you haven't created these for yourself, you most certainly should.
I've found that many people are confused about what advance directives are (or are not). Many people are shocked to learn that in many states (including my home state of Ohio), a familial relationship (for example, husband and wife) does not automatically give one person in the relationship the ability to make decisions for the other person, when the other person is incapacitated (the exception to this is the right of parents to make medical decisions for their children).
Advance directives let people choose who will make decisions for them when incapacity strikes, thereby avoiding confusion, delays in treatment, fights between friends and family members, the involvement of courts, and a variety of other problems (and I've seen them all).
For gay couples in states that don't recognize same sex marriage (or a civil equivalent that gives same sex partners equal rights in this area), it's doubly important to have advance directives in place.
There are two main types of advance directives: living wills and durable powers of attorney for health care. Simple explanations (which may vary slightly from state to state):
- Living will - you give another person the right to decide when to discontinue life support and let you die, when: (1) you are unable to make the decision yourself, and will likely never recover enough to make the decision; and (2) your physicians have certified that you have a terminal illness and will not recover. Some states require some extra steps to give the right to discontinue artificial feeding and hydration.
A living will is not a "will," as that term is commonly used. A will is used to dispose of your assets when you die, and perhaps to nominate guardians for your children. A will does not give anyone the right to make medical decisions for you. Likewise, a "living will" is only about medical decisions, and has nothing to do with what happens to your assets after you die.
- Durable Power of Attorney for Healthcare (DPOAHC) - you give another person the right to make medical decisions for you when you are unanble to even if you are expected to recover. For example, if you are brought to an emergency room unconscious from a heart attack, the person you name in your DPOAHC can speak with your doctors and decide which treatment should be given to you.
A common misconception is that the person you name in your DPOAHC can always make medical decisions for you. Not true: the person you name only has decision making authority when you are not able to make decisions for yourself.
A DPOAHC is different from a regular power of attorney of the sort that is usually used in estate planning (together with a regular will). By using a regular power of attorney, you are giving another person the right to manage your non-medical affairs (e.g., to write checks on your bank account to pay your bills). Regular powers of attorney generally do not confer medical decision making authority (and even when they do, they usually fall short in meeting state law requirements for conferring medical decision making authority).
So: if you want to avoid problems in the event that you can't make medical decisions for yourself, complete both a living will and durable power of attorney for healthcare. Discuss your philosophy and wishes with the person that you appoint to make medical decisions when you are not able to. Provide copies of the signed documents to the person you name, your doctor, and (if possible) the person who processes your admission to a hospital or surgery center for a procedure.
You can find free forms for your state here.
I've had hundreds of calls about what course of action could be taken for patients who had lost their capacity to make their own medical decisions. You can save your loved ones anguish, and make sure that your own wishes are respected, by completing these forms.