Health Care Directives | Ryan & Grinde, Ltd.

By: Masood Dehnavifar

Why Does a Person Need a Health Care Directive?

A health care directive is extremely helpful in situations where a person is still alive, but lacks capacity to make their own health care decisions. Examples of situations where a person benefits from a health care directive include traumatic brain injuries, strokes, dementia, Alzheimer’s and other similar health related situations. You must create a health care directive while you have capacity. Once you no longer have capacity, a person would need to go through a court process to have a guardian appointed. As you would expect, the court process is typically time consuming, expensive, and can be emotionally draining on loved ones.

What is a Health Care Directive?

A health care directive is a simplistic, straightforward, and low-cost document that appoints a person to communicate with doctors and make health care decisions on your behalf. The document allows you to provide instructions about the health care you expect to receive. The health care agent you appoint it under a duty to make health care decisions pursuant to your wishes. A health care directive can be revoked or amended as long as you still have capacity.

What Can a Health Care Agent Do?

You can give broad powers to your agent or you can limit the powers given to your agent. Your instructions can be detailed with respect to hypothetical health care situations or they can remain broad. A health care directive typically includes provisions for the following:

  • Consenting to or refusing health care treatments
  • Choosing your health care providers
  • Choosing where you live
  • Reviewing your medical records and discussing care with your doctors
  • Choosing whether to donate your body parts
  • Choosing cremation or burial
  • Choosing whether to administer intrusive mental health treatments

Mistakes for the Unwary – Including Attorneys

The number one mistake a person can make is not having a health care directive. It is a low-cost and simplistic alternative to a guardianship court proceeding. Decisions can immediately be made on your behalf, rather than having to go through an expensive and time consuming court process. Additionally, avoiding a court proceeding helps your loved ones minimize the emotional stress and pressure of dealing with your incapacity. Instead, your loved ones can focus on what matters most, which is caring for you in your time of need.

Another common mistake, often made even by attorneys, is failing to properly execute the health care directive. The health care directive must be witnessed, as opposed to notarized, if you want to give your agent the authority to make decisions with respect to the administration of intrusive mental health treatments.

A third common mistake, again often made even by attorneys, is failing to specifically grant your agent the ability to access medical records and referencing HIPPA in your health care directive. Without the proper provisions in your health care directive, a health care organization may respect the decision made by your agent, but may not allow your agent access to medical records.