Understanding Living Wills and Powers of Attorney

Generally, most people are not keen on investing too much time in imagining what would happen if they suddenly became incapable of making choices regarding their own medical care, whether it be due to an accident, illness, or old age. But surprisingly, it takes very little planning, including writing out your wishes about what sort of medical treatment you do or do not want and specifying a person who would oversee your medical care, to get these important matters in order. If plans aren’t made and something does happen, your care may end up in the hands of someone you may not trust or would not have otherwise chosen to be responsible for your well being. Feel free to contact one of our Albuquerque estate planning lawyers for a free consultation regarding your estate and carrying out your wishes.

Basic Health Care Documents

There are generally two documents through which you can specify your preferences for medical care in the case of incapacitation. First, a living will, and second, a durable power of attorney specific to healthcare. To be safe, it is best to prepare both documents. Some states combine the two into one form, which is most often called an “advance directive.” In reality, each document is a form of healthcare directive in that it allows a person to spell out their wishes for medical care should they become unable to do so themselves later on. Both documents are discussed more fully below:

Living Wills

The most important document includes a detailed written statement regarding what kind of medical treatment you do or do not want to receive in the event that you become incapacitated. Most often, this document is regarded as a “living will,” though some states refer to it by another name. This document, despite its name, is not at all related to a conventional will, which specifies how your property and assets should be distributed after your death (see our article for answers to frequently asked questions about wills in New Mexico). Instead, a living will functions solely as a specification of your health care decisions and preferences during your life.

Health Care Power of Attorney

After drafting a living will, you would be wise to also execute a durable power of attorney for health care decisions. By doing so, you’ll select a person you know and trust to oversee your health care in the event of incapacitation (i.e., when you are unable to make healthcare decisions for yourself). This person would make important and necessary health care decisions, and make sure that you are receiving the type of medical care that you want to receive, and that you are not receiving the type of medical care you did not want. See this article for more information about choosing an agent for your health care directives.

Who Can Execute These Documents?

To effectively execute an enforceable living will or power of attorney for health care, a person must be at least 18 years old and of sound mind, meaning they are capable of understanding the significance of the documents, their provisions, and their ramifications.

When Do These Documents Go Into Effect?

Your living will or medical power of attorney will take usually take effect in the event that a medical professional determines you no longer possess the capacity to make health care decision for yourself. This could occur after an accident which leaves a person in a coma or otherwise mentally incompetent, or any other number of medical conditions which effect mental capacity. More specifically, a lack of mental capacity in these situations usually means that:

• You are incapable of understanding the consequence and nature of your available health care and treatment options, and/or
• You are incapable of communicating what you desire regarding your own health care, either verbally, by writing, or by using other gestures.

Generally, what this means is that if a person is ill or injured to the extent that they cannot convey their wishes whatsoever, their living will or medical power of attorney will take effect. However, if there is any doubt as to the person’s capacity to understand their options and clearly communicate their preferences, the documents may remain ineffective. Generally, your doctor or a person you specify in your living will to make the determination of whether you are “incapacitated” will decide whether the documents should spring into effect.

Some states allow a person to bestow their health care agent with the immediate power to manage their medical care. If you live in a state where this is true, you have the option to execute such a document so that your selected health care agent can intervene on your behalf at any time, whether or not a doctor’s determination of incapacity is involved.

This does not mean that your agent would be able to override your own wishes, but only that he or she would not have to wait for a medical professional’s official determination that you are no longer capable of making medical decisions on your own. If you are capable, you will still be able to make your own medical decisions even with this type of document in place. Further, even if you do become incapable, the person you select to make your health care decisions is required to always act in your best interests, and give effect to the wishes you’ve specified in the document.

When the Documents are No Longer Effective

Your health care documents will remain in effect for as long as you are living, provided that you do not decide to revoke them or a court does not intervene in some way. It is rare that a court would do so. The following are some specific situations in which your health care documents would become ineffective:

• Revocation of the documents. You have the ability to alter or entirely revoke your health care documents whenever you please. However, if you do so, it is wise to inform both your health care providers and your selected health care agent that the documents are being revoked or changed.
• Your agent’s authority is revoked by a court. If your healthcare documents spring into effect and someone subsequently believes that your appointed agent is acting contrary to your best interests, they can petition the court to intervene. If a judge then determines that your agent is in fact acting adversely to your wishes, the court will likely terminate the agent’s authority to make health care decisions on your behalf. If you have not specified a consecutive agent, or if there is nobody else appropriate for the job, the court will appoint a conservator or guardian to fill the role.
• You get divorced. A divorce generally does not affect healthcare documents executed during marriage, unless you appointed your former spouse as your health care agent. If so, some states have laws which will immediately revoke the former spouse’s authority. If your health care documents specify an alternative agent, that person will then step in to act on your behalf. Therefore, if you have executed a health care directive naming your spouse as your agent and you subsequently divorce, it is best to execute new directives entirely, for the sake of avoiding any confusion later.
• After death. Usually, health care directives are unnecessary after a person’s death. In some states though, the documents may remain in place for limited purposes, such as the disposition of your body, authorization for organ donation or autopsy, or alternatively prohibiting these things.
• The court steps in. Many judges acknowledge that a court of law is not the proper party to determine a person’s health care decisions. But if some disagreement arises regarding your health care, or someone challenges the validity of your health care documents, a judge may be forced to decide what should be done

For example, if anyone believes that you did not possess the requisite mental capacity when you executed the document(s), the person can petition a court to render the document(s) invalid. These kinds of challenges are rare, but not unheard of. If such a challenge is brought, the person raising the challenge will bear the burden of proving that you were of unsound mind when you executed the document. The court will presume that you did in fact have the required capacity, and the challenger will have to overcome that presumption with evidence that you did not.

Alternatively, a court has the ability to invalidate your documents if they were not properly executed, meaning they did not adhere to your state’s formal requirements for such documents. For example, most states require that the documents be signed by you and one or more witnesses. If a mistake in execution does occur, it is still likely that the wishes specified in the document will be adhered to so long as they are clearly written out and can be easily followed, and you were mentally competent when you wrote them. In one well known case, for example, the United States Supreme Court ruled that where there is strong evidence of a person’s wishes regarding medical care, those wishes should be honored. As such, is it unlikely that your specified wishes will be completely disregarded due to a simple error in execution.

It’s never a bad idea to execute a living will or a medical power of attorney, even if you do not anticipate that you will ever truly need such documents. If you need assistance in preparing either document so that it meets formal requirements and will best protect your wishes, consult with an experienced estate planning attorney.