LIVING WILL/ Health Care Power of Attorney/ Health Care Proxy

• What is a Living Will/ Health Care Power of Attorney/ Health Care Proxy?
• Who are the Parties to a Health Care Directive?
• What is HIPPA?
• Who Can Make a Health care Directive?
• When Does Your Health Care Directive Take Effect?
• When Does Your Health Care Directive End?

What is a Living Will/ Health Care Power of Attorney/ Health Care Proxy?

A living will, health care power of attorney and a health care proxy are all instruments known, generically, as health care directives. These legal documents all have the same effect as a durable power of attorney, except that the purpose is to provide for medical decision making rather than financial decision making which is provided by a durable power of attorney. They are recognized in every state other than the District of Columbia.

A MyWillPros health care directive combines the effects of a living will, in which you specify your wishes in regards to the use or the discontinuance of artificial life support should you fall into a coma or are in a vegetative state, relieving your loved ones of this decision, entirely. The document also, however allows you to appoint an agent who would make important decisions for you in regards to other medical treatments should you be rendered unable to do so, as with a traditional Health Care Proxy/Power of Attorney. With MyWillPros and your new attorney, all of your wishes regarding health care are prepared in writing, in advance of illness or incapacity, all in one document.

Who are the Parties to a Health Care Directive?

Principal: The principal to a health care directive is the person creating the document and granting the authority to an agent to make decisions regarding his or her health care should he or she be unable to do so on their own behalf.

Agent: The agent is the person being given responsibility to make health care decisions for the principal, should the principal be unable to do so on their own behalf. The agent will have access to the principal’s medical records and will make decisions on behalf of the principal in regards to anatomical gifts, make funeral arrangements and any legal or otherwise, personal issues pertaining to the principal while the principal is still alive. Additionally, the agent will act as the principal’s personal representative for all purposes with respect to HIPAA (the Health Insurance Portability and Accountability Act of 1996).

What is HIPAA?

HIPPA stands for the Health Insurance Portability and Accountability Act. It is an Act which in 1996 established, for the first time, national standards for the protection of health information. Without a properly prepared health care directive, with language specifically dealing with HIPAA provisions stating the intent to release information to an agent, the ability of the agent to act properly may be compromised, leaving these decisions up to the family.

What are the Requirements for a Health Care Directive

The Creator Must be at least 18 Years of Age.

The Creator Must be Competent: The classic common law definition for competence has been adopted by every state. The creator must:

1. Have the ability to understand what the meaning of the health care directive is.
2. Understand what the health care directive contains.
3. Understand how a health care directive works.

The Health Care Directive Must Be In Writing, Signed by the Creator (Principal) and witnessed.

Different States have different statutes in regards to the proximity of the witnessing. Your lawyer will make sure that the document is executed properly.

An Agent Must Be Named. Within the document, an 'Agent' is named. This is the person who

When Does Your Health Care Directive Take Effect?

Your health care documents take effect when your agent determines that you lack the capacity to make your own health care decisions. Lacking capacity usually means that:

1. you can't understand the nature and consequences of the health care choices that are available to you, and
2. you are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

In essence, if you are so ill or injured that you are unable express your health care wishes in any way, your health care directive will instantly spring into effect. However, if there is any question about your ability to understand your treatment choices and communicate clearly, your agent, with the input of your doctor, will decide whether it is time for your health care directive to become operative.

When Does Your Health Care Directive End?

Your written health care directive remains effective as long as you are alive, unless you specifically revoke your documents, which you may do at any time, or a court invalidates the health care directive.

Revoking Your Health Care Directive. You can change or revoke a health care directive at any time. Just be sure that your health care providers and your agent are advised of the revocation or alteration.

The Court’s Involvement: Most courts recognize that the courtroom is not generally the place to make health care decisions. However, if someone questions the validity of your health care directives, the matter may end up before a judge. These are the main reasons that the validity of your health care directive may end up before a judge:

1. Lacking Capacity: Someone doubts that you had the mental capacity to prepare a legally valid health care directive. The burden of proving that you were not of sound mind when you made your document falls on the person who challenges its validity.
   
   
2. Unfulfilled Requirements: A court could invalidate your directive if it did not meet your state’s requirements. A very good reason to have your attorney involved.
   
   
3. Performance of Agent: If, after your health care directive takes effect, someone believes that your health care agent is not acting according to your wishes or in your best interests, the court can intervene. If a court finds that your agent is acting inappropriately, his or her authority can be revoked. If this should happen, the job will go first to an alternate agent you named in your directive.
   
   
4. Divorce: If you named your spouse as your health care agent, his or her authority is automatically revoked in a number of states. In that case, if you named an alternate agent, that person will take over. However, should you get divorced, you should write a new health care directive to clear any confusion.
   
   
5. Undue Influence: As with any of these sensitive legal documents, a Health Care Directive may be challenged in court if there appears to be any undue influence in its drafting. An undue influence is, for example, your son tells you that unless you make him your agent in your Health Care Directive, he will not allow you to see your beloved grandchildren. An attorney will make sure there is no undue influence.