Make Your Wishes Known Now For When You Can't: Understanding Advance Directives for Health Care and Durable Health Care Powers of Attorney

It has often been said that there are two things in life we cannot avoid, death and taxes.

By timely consulting with the proper professionals, however, we can certainly prepare for both on our own terms.

Advances in medical science in recent decades have been astounding, which, coupled with healthier lifestyles, are allowing people to live longer than ever before. As we grow older and experience problems with our health, we will inevitably find ourselves in a position where decisions must be made as to how we would want to be treated in a variety of medical situations.

More importantly, we may sometimes find ourselves in a condition where we can no longer express our preferences.

Advance directives for health care, also known as living wills, and durable health care powers of attorney, allow us to deal with these situations ahead of time. Without such documents, your family may have to obtain court orders to direct the type of health care you are to receive.

Under Pennsylvania law, you have the right to decide the type of health care you want to receive.

In the event that you are unable to understand, communicate, or make decisions in a medical situation, your wishes for the type of health care you want to receive, are more likely to be honored if you express those wishes in advance by:

• (1) Naming a "health care agent" to decide health care treatments on your behalf

• (2) Giving health care treatment instructions to your "health care agent" or health care provider. That's where an advance directive for health care and durable health care powers of attorney come into play.

Although both documents require the naming of a "health care agent", each document has its own specific purpose, and it is important to understand the distinctions.

An advance directive for health care is a written statement or a set of instructions expressing your wishes for health care treatments under various medical situations.

In other words, it allows you to retain control over whether or not your life should be prolonged by the use of artificial means in a case where you are permanently unconscious, have a terminal condition, or are deemed incompetent. These instructions must be specific, describing the kinds of life-sustaining medical treatments and procedures you wish to be either initiated, continued, withheld or withdrawn.

It is strongly recommended that these instructions be prepared only after a consultation with your physician or health care provider, so that you may better understand what kinds of medical treatments and procedures are available.

In Pennsylvania, an advance directive for health care may be executed by any individual, 18 years of age, who is of sound mind. The signing must be witnessed by at least two witnesses and, unlike a typical last will and testament, it need not be notarized.

Importantly, an advance directive for health care can be used only after your physician has made a written diagnosis that you are permanently unconscious, have a terminal condition, or are incompetent, AND the diagnosis has been confirmed in writing by a second physician.

A physician or health care provider need not comply with your instructions if he is unwilling or cannot do so in good conscience. However, the physician or health care provider must make every reasonable effort to assist in transferring you to another physician or health care provider who will comply with your instructions.

It is worth noting that under Pennsylvania law, the existence of an advance directive for health care cannot affect any life insurance policy or health care insurance coverage, or your insurance rates. Moreover, you cannot be required to execute an advance directive for health care in order to buy or maintain insurance.

A durable health care power of attorney is similar to an advance directive for health care, in that it is a written set of instructions authorizing a "health care agent" to make health care decisions for you, in the event that you are unable to express or make those decisions yourself.

However, a durable health care power of attorney pertains to ALL medical situations, not only those involving cases where you are permanently unconscious, have a terminal condition, or are deemed incompetent. A durable health care power of attorney may also contain instructions or guidelines you want your "health care agent" to follow. 

Typically, an advance directive for health care will also contain a durable health care power of attorney.

It is important to make sure that the individual you name as an "health care agent" is willing to fill this role and understands your preferences and desires.  Moreover, make sure to safeguard these documents, by keeping them in a fireproof safe.

Furthermore, you should provide copies to all of your physicians, health care providers, attorney, and anyone, whether a friend or family member, whom you expect would likely attend to your needs if you become unable to understand, make, or communicate decisions about your medical care.

Ladies and gentlemen, the bottom line is simple: if you do not write down your wishes about your health care in advance, and you later become unable to understand, make, or communicate your wishes, then they will likely not be honored since they are unknown to others.

Therefore, it is important to prepare both an advance directive for health care and a durable health care power of attorney, to make sure that your health care wishes are carried out in the event that you cannot speak for yourself.

One thing I also want to add is that April 16 is National Healthcare Decisions Day, a day devoted "to inspire, educate and empower the public and providers about the importance of advance care planning." Therefore, what better time to overcome your put-off-to-another-day attitude and get these documents prepared professionally.

An Advance directive for health care and a durable health care power of attorney, must be properly prepared in order to be legally binding and that can only be achieved by consulting an attorney properly trained and experienced in preparing these documents. Do not settle for the do-it-yourself kits or on-line forms, as these often do not take into account the intricacies of Pennsylvania law or the special circumstances of your situation.

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For a consultation on preparing these documents, geared to specifically address your values, beliefs, and wishes, please do not hesitate to contact me at 267-615-8090 or at fsciarrino@fabio-law.com.

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For more information, visit www.fabio-law.com.