Should I have a living Will?
by: Legal Aid Service of Northeastern Minnesota-Duluth
A legal question and answer column for seniors.
DEAR SENIORS LEGAL LINE:
I have terminal cancer, and I am concerned about my health care if I become unable to communicate my wishes in the future. I want my personal health care wishes followed, even when I cannot express them clearly myself. I have heard about living wills. Is this what I should have to make sure that my health care wishes are followed?
Signed, Ronald
DEAR RONALD:
I commend you for your question and for your foresight in planning ahead for the time, if it comes, when you cannot communicate your health care decisions. Putting your wishes in writing will go a long way to insure that your wishes are followed, as well as to ease the minds of your family and friends about what the correct course of action would be if you cannot make your own health care decisions. These sorts of writings are called "advance directives" for health care. They can be in the form of the old "Living Will," a Health Care Power of Attorney, or a form that complies with the Minnesota Health Care Directive Statutes. In my opinion, the Health Care Directive is the one that most people use.
The Health Care Directive is a legal document in which you can name agent(s) and/or leave written instructions to your agent(s) and physicians about your health care wishes. It combines the aspects of a Health Care Power of Attorney and the old Living Will. If you have a Living Will, it is still valid, but I encourage you to think about drafting a Health Care Directive. Unlike a Living Will, you do not need to have a terminal condition with a Health Care Directive. In fact, everyone over the age of 18 should seriously think about having a Health Care Directive.
A Health Care Directive is triggered when you no longer can make competent health care decisions, as determined by your physician. Up until that triggering event, your health care providers will not have to refer to your Health Care Directive as you can tell them directly what you wish for your health care. When that triggering event occurs, however, then your doctors will look to see if you have a Health Care Directive. If you do, they will look to see if you have left instructions and if you have named agents. If so, they will refer to the instructions and speak to your agent(s). As long as your wishes fall within standard medical practice, your doctors are legally bound to follow your wishes to the best of their ability.
Before you draft a Health Care Directive, you should think about whether or not you have people that you would like to name as your agents. You should trust your agents and talk to them to see if they would be willing to act as you wish, should the need arise. Just because you name an agent, however, doesn't mean that they have to act. If they do act for you under the Directive, they must act in a way that conforms with what you want. For this reason, it is wise to give them instructions about what you want. At the very least, you should discuss with them what your wishes are before the need arises for them to act.
In order to be valid under Minnesota law, a Health Care Directive must either name an agent or agents and/or give written instructions about your wishes. You do not have to do both. To make it legal, as the principal, you must sign the Directive either in front of a Notary Public or two witnesses. While there are no specific forms that a Health Care Directive has to take, it must at least meet these bare minimum requirements under the statute. If your Minnesota Health Care Directive satisfies the Minnesota requirements, all the other states will follow it as well.
Once you are done signing the document either in front of a Notary or two witnesses, I recommend that you keep a copy for yourself, provide the original to your primary agent, and make copies for all other agents and your health care providers. Note: A copy is just as valid as the original. If you do a lot of traveling, you may wish to take one along with you in your luggage. A good rule of thumb is to provide a copy of your Health Care Directive to all those who would be at your bedside in a health crisis. Keep a record of who you give your Health Care Directive to.
If you decide to change your Health Care Directive in the future, you may do so. Minnesota law states that your health care providers and agents must follow the last Health Care Directive you created. Thus, if you modify or create a new Health Care Directive, you should provide your new Directive to all those who have a copy of your old one.
A Health Care Directive is a very important legal document for everyone to have. You may recall the Terri Schiavo situation in Florida a few years ago. Ms. Schiavo did not have an advance directive, so the doctors had much more difficulty in knowing what Ms. Schiavo's wishes were. It is very likely that if she had an advance directive, none of the subsequent conflict would have occurred between the family members and no outside intervention would have had to happen.
Advance directives have been recognized as an important part of legal planning. In fact, April 16, 2008 has been designated as the first annual "National Health Care Decisions Day." I encourage everyone to use this day to think about Health Care Directives, and to get the form and fill it out. For more information about the National Health Care Decisions Day, log onto www.nationalhealthcaredecisionsday.org.
Our office discusses Health Care Directives with community groups in the area, as well as to individual clients. You do not need an attorney to draft a Health Care Directive, but it can be helpful to speak with one if you have any specific questions. As a practice, our office does not help people draft their Health Care Directives as it involves personal choices, and an attorney is not needed to do so.
For further information about Minnesota Health Care Directives, or to complete an online form which you may print out, visit the Minnesota Board on Aging website at www.mnaging.org and click on the blue Health Care Directive link in the lower portion of the website page.
This column is written by the Senior Citizens' Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing to: Senior Citizens' Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprints by permission only.
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