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Who Will Make Your Health Decisions if You Become Incapacitated?

Who Will Make Your Health Decisions if You Become Incapacitated?

Less than one-third of Americans make plans to take care of themselves in case that they are no longer able to do so. If you don't name someone to have power of attorney for your health decisions, a court may create a guardianship or conservatorship to name someone to make those decisions for you if you become incapacitated. Under a guardianship, a person is reduced to the legal status of an infant. That person cannot vote, get married, or enter contracts. Guardianship proceedings are the court's last resort after an adult fails to plan ahead and designate who would handle his health care decisions if he became incapacitated.

Advanced medical directives detail the kind of medical care you'd want in case you are incapacitated and can't voice your own wishes. An advance medical directive typically has two parts: (1) a durable power of attorney for health care and (2) a living will. A "durable power of attorney for health care" designates a person who can legally act as your agent, making medical decisions for you if you are incapacitated. A power of attorney is a written legal document that gives another person the right and authority to act on your behalf. Powers of attorneys can be limited to special circumstances or it can be general. That authority will end if you become incapacitated—unless you have a durable power of attorney. Conversely, a durable power of attorney will remain in effect while you are incapacitated. This means that if you were suddenly unable to handle your own affairs, someone you trust—your legal agent—could do so for you. The living will describes the type of care you would want if you become critically ill and spells out what you want/don't want in terms of end-of-life care.

To create an advanced medical directive, you must first choose someone to be your health care agent. Be sure to choose carefully because this person will have the authority to make life and death decisions for you according to your wishes. You must be sure that the person you choose is of sound mind and is willing to be your agent. Your agent should also be someone you trust with your life and who lives near you. Your agent should also be a strong advocate for you and someone who can handle conflicting opinions—likely from your family members, friends, and medical personnel.

After you choose your health care agent and they accept the position, you must discuss your health care decisions with your agent. Although this discussion may be difficult to have, it is extremely important because your agent must try to make decisions the way you would. Through this discussion you should address your choices for topics like life-sustaining measures, organ donations, funeral arrangements, and disposition of remains.

Finally, have your attorney draft your advance medical directive. Each state has specific requirements for their medical directives. It is safest to have a skilled professional draft your medical directive that complies with your state's requirements. Contact one of our experienced estate planning attorneys today to create your advance medical directive.

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