Understanding the Role of an Advance Directive in Your Estate Plan

What is an Advance Directive or Living Will?

An Advance Directive, often referred to as a Living Will, is a legal document that outlines an individual's preferences for medical treatment and end-of-life care. It allows individuals to specify the medical interventions they do or do not want in specific situations, such as if they are terminally ill, permanently unconscious, or at the end of their life due to old age.

Why an Advanced Directive is an Important Piece of your Estate Plan

Advanced Directives provide clear instructions on medical treatment in the event an individual is unable to communicate these preferences to their healthcare providers due to prolonged incapacity. Few decisions are more difficult for families and loved ones to make than end-of-life care for an individual who is unable to express their preferences and wishes during these difficult times. By creating an Advanced Directive, you can minimize this burden by memorializing your wishes before encountering these challenging circumstances. 

Key Components of an Advance Directive:

1. Declaration: The document should begin with a declaration stating that it is an advance directive and expressing the individual's intentions regarding their medical care.
2. Appointment of a Health Care Proxy or Agent: Individuals can appoint a trusted person, known as a health care proxy or agent, to make medical decisions on their behalf if they become unable to do so themselves.
3. Medical Treatment Preferences: The Advance Directive should outline the individual's preferences for medical treatment in various scenarios, such as life-sustaining treatments, resuscitation, and palliative care.
4. Signature and Witness Requirements: In most states, the document must be signed by the individual and witnessed by two adults who are not related to the individual and who would not inherit any portion of the individual's estate. Evans & Davis also recommend that the signatures be notarized.

Considerations for Creating an Advance Directive:

Creating an Advance Directive ensures that individuals retain control over their medical care, even if they are unable to communicate their wishes. It provides peace of mind to both the individual and their loved ones, as it clarifies their preferences and reduces the burden of decision-making during difficult times. Creating an Advance Directive is a proactive step towards ensuring that one's medical preferences are known and followed, providing comfort and reassurance to both individuals and their families. 

Prior to creating an Advance Directive – consider some of the following:

• What form of life support do you wish to be provided?
• Do you wish to receive artificially administered nutrition and hydration?
• If you are placed on life support, how long would you like to remain in this condition?
• Who would you like to decide when to end life-prolonging care?
• Should you experience cardiac arrest, would you like to be resuscitated?
• Do your opinions differ here based on circumstances involving persistent unconsciousness, terminal conditions, or end-stage conditions?
• If your physician determines that you are unable to make decisions regarding your medical treatment, who should make these decisions for you?
• Would you like your Healthcare Power of Attorney to make decisions regarding your care in these circumstances?

I Have a Healthcare Power of Attorney – Do I Need an Advanced Directive?

Requirements for Advanced Directives and Healthcare Powers of Attorney may differ based on the state in which you reside. Generally, if you have established a Healthcare Power of Attorney – this will be the party that determines your course of treatment in the event you become incapacitated. Should you fall into a condition of prolonged incapacity, where there is likely no recovery, an Advance Directive would take effect by providing your predetermined healthcare course of treatment. By pairing these two important documents together, you can ensure that your critical healthcare decisions are provided for precisely according to your preferences. 

Conclusion

An Advanced Directive is an essential part of a comprehensive estate plan. It clearly provides for your preferred healthcare treatment in the event you remain persistently unconscious or in an end-of-life condition. By creating this document, these important decisions will be made before they fall into the hands of your family and loved ones – reducing stress and conflict during an emotional and challenging time. State-specific requirements vary for Advanced Directives. Speak with an experienced estate planning attorney and determine the best course of action for you and your family.