Why Do Health Care Directives Matter?
When meeting with a lawyer, most clients focus primarily on their Will, Trust, or Power of Attorney documents. Without being prompted, many of my clients would never think to create or update their Health Care Directive at all, particularly when they are young or healthy. So what is a Health Care Directive, and why does it matter so much?
A Health Care Directive is a legal document in which one person gives another person the ability to make medical or health care decisions on their behalf when incapacitated. Every state has slightly different laws about this, and many states call the Health Care Directive another name, such as “Medical Power of Attorney” or “Advanced Directive”. “Health Care Directive” is the term in Minnesota law. We call the person giving the power the “principal”. We call the person who is making decisions for another person the “Health Care Agent”.
In many states, there is a law that states who has the right to serve as the default Health Care Agent if the principal doesn’t have a Health Care Directive. These laws are called “default surrogacy consent laws”. They often have a ranked set of people who can make health care decisions for another person. For example, with no Health Care Directive, a default surrogate consent law would typically first give the power to the spouse; if none, then adult child/children; if none, then parent(s), and so forth.
However, Minnesota isn’t one of those states! This means that if I don’t have a health care directive, there is no default “person” who automatically gets to make medical decisions for me if there’s a serious medical event.
So, who ends up making medical decisions with no Health Care Directive?
This ends up varying dramatically based on circumstances, but generally, health care professionals will bring together the “obvious candidates” and try to bring them to a consensus about making decisions. In other words—anyone who might litigate about your sudden demise or injury is going to be consulted (such as: a spouse, child, or sometimes even a sibling could sue for loss of companionship or for loss of your income, or a similar lawsuit). It’s also likely that hospitals and facilities would take a conservative approach to limit their liability.
Perhaps this is fine with you. Consensus among family members is a good thing! However, it’s not a good plan for everyone. Many of my clients have strained relationships with their family of origin, or simply wouldn’t want a sibling or one of their adult children to influence the decision because of that person’s beliefs or difficulty with coming to terms of end-of-life.
Without a Health Care Directive, generally medical professionals do a good job trying to honor the person in need of medical care, and we should remember that they are doing their best for their patients. It’s a good thing to bring the close relatives and interested people to a consensus. The main problem is that there is one person whose voice is not being heard: yours. By definition, you would be unable to communicate your wishes, and under the circumstances, your opinion is the most important one. Without a Health Care Directive, everyone’s voice will be heard except for yours.
Health Care Directives matter because they give you a chance to voice your opinion about what you’d like to happen if you aren’t able to communicate that yourself. Even more importantly, a Health Care Directive nominates the right person to make decisions for you and speak on your behalf. A Health Care Directive gives your Health Care Agent the moral and legal authority to follow through with your instructions and wishes—and the authority to advocate for what you actually want, no matter what other people might think or want for you.
Please reach out if you have any questions, or if you’d like to update your Health Care Directive.
The material contained or linked to in this blog is for general informational purposes only, and is not intended to create or constitute an attorney-client relationship between Courtney Law Office, PLLC and any person. The information is not offered as legal advice and should not be construed as legal advice. Readers should not act on the information presented without consulting an attorney about your specific situation. Communications with the Courtney Law Office are not confidential unless a legal relationship is established by a representation agreement. If you would like to establish a legal relationship and seek legal advice, please reach out.
