The Importance of a Health Care Power of Attorney & Living Will Declaration March 25, 2020

kpg_headshot, power of attorney

The Importance of a Health Care Power of Attorney & Living Will Declaration
By: Kyle Graham

In today’s unpredictable landscape, it is important for individuals to plan for situations in which they are too ill or unable to make their own health care decisions.  Utilizing advance directives allows an individual to obtain the medical care he or she desires, without putting pressure on friends and family to make important medical decisions on the individual’s behalf.  Advance directives are legal documents that designate health care decision-makers and choices about life-sustaining treatment. Ohio has two primary types of advance directives: (1) the health care power of attorney; and (2) the living will declaration.  While advance directives are generally thought of in the context of the elderly, unexpected medical emergencies can happen to anyone and advance care planning should be a vital component of every person’s estate plan.

Health Care Power of Attorney

The health care power of attorney allows an individual to designate an agent and alternate agents – such as a spouse, family member, or friend – to make health care decisions for the individual when that person’s physician determines the individual has lost capacity to make informed health care decisions on his or her own.  The health care power of attorney also allows an individual to leave specific instructions for the agent regarding his or her health care and treatment.  This can effectively limit the amount of discretion an agent has and provides clear guidance regarding the individual’s wishes to the health care provider.

It is important to note that the health care power of attorney is a different document than other powers of attorney, which may nominate an agent to make financial or legal decisions on behalf of another when he or she is unable.  Further, the information provided in a health care power of attorney can be changed or altered at any time.

Living Will Declaration

The living will declaration documents an individual’s wish that life-sustaining treatment, including artificially or technologically supplied nutrition and hydration, be withheld or withdrawn if he or she is unable to make informed medical decisions and is in a terminal condition or a permanently unconscious state.  A terminal condition is an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty, both of the following apply: (1) there can be no recovery; and (2) death is likely to occur within a relatively short time if life-sustaining treatment is not administered.  Conversely, a permanently unconscious state means an irreversible condition in which the patient is permanently unaware of himself or herself and surroundings.

The living will declaration does not affect the health care providers’ responsibility to provide comfort care.  Comfort care means measures taken to diminish pain or discomfort, but not to postpone death.  Note that the living declaration only applies when an individual is in a terminal condition or a permanently unconscious state; an individual that wishes to direct medical treatment in other circumstances must do so through the health care power of attorney.  Like the health care power of attorney, the living will declaration may be changed or rescinded at any time.

Conclusion

 Advance directives are an important component to an individual’s estate plan.  Not only do they provide clear guidance to health care providers, they also can eliminate potential family disputes relating to important health care decisions made on behalf of a loved one.  In these times, it is vital that individuals consider the need for advance directives and update their existing documents if need be.

Kyle Graham is an associate attorney at the Cleveland, OH-based law firm McCarthy, Lebit, Crystal & Liffman.

 

While we would be thrilled to work with all individuals, institutions and companies that read our advisories, we  want to clarify that these insights do not form a lawyer-client relationship and represent only general guidance without access or reference to all of the specific facts and circumstances.  If you do wish to engage McCarthy Lebit on a specific matter, please contact us by calling 216-696-1422 or by filling out an inquiry form located here.  If you are already a firm client, please contact the McCarthy Lebit attorney you work with to discuss these advisories and/or the nature of your concern.  In closing, please understand that the law, especially during this pandemic, is changing rapidly and we would recommend that you regularly contact your legal counsel to ensure that your actions are taken based on the most up-to-date versions of the laws.

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