Q: Recently, my mom had a stroke and was incapacitated for several days, during which my sister and I were at odds with my mom’s significant other over some of the healthcare decisions needing to be made. Thankfully my mom is recovered, but we want her to take steps now to designate someone to have legal authority to make those decisions. What can she do?
A: Many people assume that their family members will automatically be able to make decisions about medical treatments if they were to become incapacitated. However, rules vary greatly from state to state:
- Your family may have to go through a costly and time-consuming court process to get the legal right to make medical decisions for you.
- Your family members may disagree on who should make medical decisions on your behalf, which could lead to legal disputes.
- Someone unfamiliar with your preferences may be placed in charge of your treatment choices.
It’s important to have a plan in place ahead of time to avoid disagreements around treatment issues and to ensure your wishes are honored if you are incapacitated. Advance directives, living wills, health care proxies and powers of attorney can help ensure that decisions made on your behalf meet your needs and preferences. Here are some brief definitions:
- Living will: A written record of the type of medical care you would want in specified situations.
- Advance directive: Often refers to a combination including both a living will and health care proxy documents.
- Health care proxy or patient advocate: Names someone you trust as your proxy, or your agent, to express your wishes and make health care decisions for you if you’re unable to speak for yourself.
- Power of attorney: Names someone you trust as your agent to make property, financial and other legal decisions on your behalf.
The main difference between a health care proxy and an advance directive is who or what will be speaking on your behalf in your absence. In the case of a health care proxy, a trusted loved one will be given the responsibility. However, with an advance directive, your decisions regarding medical intervention and end-of-life preferences are clearly stated in a legally binding document rather than a living person. Patient advocates or proxies are sometimes referred to as a “durable power of attorney for health care.” These documents are not the same as a general durable power of attorney or power of attorney for finances.
In most cases, you do not need a specific form to create an advance directive, living will or health care proxy. However, you may want legal assistance if you have uncommon wishes or if you anticipate disagreements among family members. You should usually consult an attorney to draw up a durable power of attorney. If you don’t get legal assistance, remember that your documents should comply with any rules in your state and cover all the issues that are important to you.
Discuss the contents of any future care documents with family members, health care providers and anyone else you feel should know. You should give your providers a copy and may want to provide copies to others, or bring a copy along with you if you are going to the hospital.
For help creating these documents or information on how to comply with your state’s rules, you can contact the following organizations: Michigan’s State Attorney General office: michigan. gov/ag; the Department of Health and Human Services: michigan.gov/mdhhs; The National Hospice and Palliative Care Organization: nhpco.org, or any of our local hospice organizations; the American Bar Association Commission on Legal Problems of the Elderly: americanbar.org, or Michigan State Bar Association: michbar.org, or area elder law attorneys.
Sara Duris is community information liaison of Region IV Area Agency on Aging in Southwest Michigan. Questions on age or independence services? Call the Info-Line for Aging & Disability at 800-654-2810 or visit areaagencyonaging.org. The Generations column appears each weekend in The Herald-Palladium.