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Defining Your Wishes – Advanced Health Care Directives and Powers of Attorney

Timothy R. Hughes, Esq.
Hughes & Associates, P.L.L.C.

Every so often, a pending legal case seems to dominate the media landscape. The recent case involving Theresa Schiavo has created a rhetorical gas fire of arguments regarding morality and the law. The more subtle message is that regardless of your circumstances, you can and should make your wishes regarding medical treatment clear. To do so, you need to understand the basics of powers of attorney and living wills (also known as advanced medical directives).

I. Powers of Attorney

A power of attorney is a document which gives your agent the power to act on your behalf. Powers of attorney can be drafted either narrowly or broadly. A limited power of attorney may give a person the right to sign a deed for you at closing on your house. A broader power of attorney may give your agent the ability to stand in your shoes with respect to all of your assets. A durable power of attorney is a power of attorney which expressly survives your incapacity.

You need to analyze your specific situation to determine which power of attorney, if any, fits your specific situation. For example, if you have a trusted family member and you are physically or mentally ailing, it may make sense to delegate your finances to another. I stood in this position for my grandparents for several years before they died. Other specific situation may dictate not having a power of attorney at all. You need to think through this issue carefully because an agent on a power of attorney has broad discretion with your assets and funds.

Even without a power of attorney, there are court procedures to have a guardian appointed to manage your affairs in the event you are unable. The procedures are more cumbersome, public, and time consuming than a simple power of attorney.

II. Living Wills/Advanced Health Care Directives

A living will is a legal document which sets forth your wishes with respect to health care decisions in the event you are unable to articulate those wishes at any time. In some states, including Virginia, these documents are called “advanced health care directives” or “advanced medical directives”. Nevertheless, many people are familiar with the living will terminology.

Virginia statutes permit you to specifically designate a person to act as your agent with regards to health care decisions. You can also specifically define circumstances in which you would like to continue or discontinue treatment within your advanced health care directive. The statute requires that two disinterested persons witness you signing the advanced health care directive.

You may also have heard of a “DNR” if you or a loved one has faced a serious health related situation. A “DNR” stands for “do not resuscitate”. This type of standing direction basically directs the health care provider in advance regarding which type of procedures should or should not be done.

DNRs are generally used when there is some advance planning or knowledge regarding the specific medical situation. If you are younger or have not had a serious medical condition, you would not have any DNR in place. A DNR is also limited on its face and does not offer true guidance on how or when to curtail medical treatment in general.

Conclusion

Take control over your own situation. You may save your family and loved ones a lot of potential heartache. If you set out your express wishes and directions in writing, you can go a long way towards ensuring those wishes are followed and reducing potential conflict in an already challenging situation.