Most Americans die in a hospital, nursing home, or other health care facility. Doctors who are charged with preserving life are generally legally powerless to provide other than minimum care due to their malpractice fears. The less than ideal doctor-patient care is further compounded by the fact the doctors run the risk of caring out actions that may be contrary to their patient’s wishes whilst unconscious. Consequently, the doctors look to family members with the legal authority for instructions and decisions.

Problems arise where spouses, partners, and other family members disagree about what’s the proper course of treatment to take to preserve or terminate life. In the most complicated scenarios where everyone is an emotionally bankrupt, these disagreements wind up in court, where a judge, who usually has little medical knowledge and no familiarity with you is called upon to decide the future of your treatment and possibly the termination of your life. Such legal battles are extremely costly, time-consuming and cause undue pain to those involved. In a worse case scenario, if a medical emergency arises it could cost you your life.

TERRI SCHIAVO CASE RUNS THROUGH ENDLESS APPEALS, LAWSUITS AND DENIALS

Without An Advanced Healthcare Directive, if unmarried, common-law will have no legal authority to make any healthcare decisions for you. Even when you’re married, the parents may have more legal authority than your spouse. In the Florida Theresa Marie "Terri" Schiavo case (December 3,1963 to March 31, 2005) a legal battle between the wishes of her husband and her parents involved 14 appeals, numerous motions, petitions and hearings in the Florida courts, 5 suits in Federal District Court, a Congressional subpoena, state of Florida legislation, and 4 denials of certiorari from the Supreme Court of the United States, all of which could been avoided with an Advance Medical Directive.

Under the law, you can legally authorize your named Agent, whether spouse or common-law or anyone else, with written instructions through an Advance Medical Directive applicable to a wide range of health care decisions and not just “end-of-life decisions.”

WHAT IF YOU ALREADY HAVE A LIVING WILL? IS A LIVING WILL ENOUGH?

Most boilerplate healthcare powers of attorney, healthcare proxy, living will, etc. generally express sentiments about wanting treatments that serve only to prolong the dying process but absolutely no intervention to prolong life. Hospital proxies generally are written to protect the hospital’s financial interests and to limit their potential liability but not yours. Most standardized living wills fall short, limited to what they can accomplish, lacking capacity about day-to-day care, placement options, treatment options and interventions to implement precise treatments to give you, the patient, any chance of recovery.

HOW THE ADVANCED MEDICAL HEALTHCARE DIRECTIVE IS BETTER THAN A LIVING WILL

Healthcare directives can intimately respond to the actual facts and variables known when an actual healthcare decision needs to be made. Your legal decision maker under Advanced Healthcare Directives is also your spokesperson, your analyzer, your interpreter, your advocate with intimate knowledge about you, your wishes, and your values often under the most complicated circumstances fate has placed both you and your partner.

Advanced Healthcare Directives are more precise than most boilerplate instructions. An Advanced Medical Directive should be one of your key estate planning tools, together with a Financial Directive which I discuss in a separate article.

WHEN THE ADVANCED HEALTHCARE DIRECTIVE IS EFFECTIVE IN MEDICAL CARE

Advanced Healthcare Directives are legally binding in most of the 50 states, with exclusive power to act in your stead. An Advanced Medical Directive becomes effective when:

1. You cannot communicate your own wishes for your medical care:

A. Orally, B. In writing, or C. Through gestures, and

2. You are diagnosed to be close to death from a terminal condition, or to be permanently comatose, and

3. The medical personnel attending to your care are notified of your written directions.

Author bio - Rocco Beatrice, CPA, MST, MBA
Award-winning estate planning & trust expert
MS - Taxation, Master of Science Taxation
MBA - Management / Taxation
BSBA - Management / Accounting
CPA - Certified Public Accountant