Making Medical Decisions During Incapacity

Medical decisions during incapacity are made by the individuals named in a Medical Power of Attorney and Living Will following your wishes.

Today, there is greater awareness that incapacity from disease or injury is not a hypothetical. It’s reality, and there are tasks that must be done, as explained in a recent article entitled “Now Is the Time to Protect Your Health Care Decision-Making Rights” from Kiplinger, for making medical decisions during incapacity.

You have a fundamental right to make your own decisions regarding your healthcare decisions.  However, that can change quickly.  Failing to have your healthcare wishes documented properly also leaves your family in the terrible position of having to guess what you want, which puts them in a difficult and stressful position.

An estate planning attorney works with clients to plan how their assets will be distributed after they die (using a will and trusts, among other tools). However, they also help clients prepare for incapacity. Both are equally important, and incapacity planning might even be more important. There are three basic solutions used in most states, although each state has its own specific rules, so you will want to work with an estate planning attorney from your geographic area.

A Living Will (Directive to Physicians in Texas) addresses what you want to happen if you are in an end-stage medical condition or permanently unconsciousness. The living will can serve as an advance written directive for the type of treatment you want to have, or what treatments you do not want to have. If you are unable to communicate your wishes, this document conveys them in a clear and enforceable manner and indicates who can make that decision for you.

A Medical Power of Attorney works differently than a Living Will. This covers health care decision making when you cannot convey your own wishes. You appoint one or more agents to make health care decisions for you. They use their personal knowledge of you and the direction you indicate to make decisions on your behalf.

If you have not executed documents like these before becoming incapacitated, there are laws which provide for default decision-makers.  These laws authorize a list of individuals in order of preference to act as your health care representative and make health care decisions for you. This is the last and worst option.

It is much better for you and your family to have a plan and the proper documents for making medical decisions during incapacity. First, the state decides who will make healthcare decisions on your behalf, based on the law and not based upon people who you feel comfortable making these very personal decisions for you. If more than one person is named and the family cannot come to an agreement as to what your care should be, they may end up gridlocked, and you are the one who suffers.  This may also lead to delay in making the decision as the medical providers have to access who can make the decision based upon your family make-up, all while your medical care needs to be addressed.

Create a plan for your healthcare when you are creating or updating your estate plan. It will give you the peace of mind that, even in the worst of situations, your loved ones will know what you wanted to occur clearly and be able to go forward in following your wishes.

Reference: Kiplinger (April 29, 2021) “Now Is the Time to Protect Your Health Care Decision-Making Rights”

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