Why healthcare directives should be included in every estate plan

While no one ever wants to ever think about the possibility of being diagnosed with a terminal illness or incapacitated following a serious accident, the fact remains that these things can-and-happen with alarming regularity.

As much as this can make a person feel utterly powerless, the truth is that they can actually exercise a considerable degree of control over these situations, and provide their anguished loved ones with some much-needed guidance and peace of mind by including a very important document in their comprehensive estate plan.

Under Georgia law, any adult of sound mind can execute what is known as an advance directive for healthcare-or ADHC. It can either designate an individual to serve as a health care agent or outline treatment preferences for end-of-life medical care.

The role played by healthcare agents

When a person appoints a family member, friend or other trusted individual (not a treating physician or other medical professional) to serve as their health care agent, that person is essentially giving carte blanche to make medical decisions on their behalf in the event of their incapacity.

Some of the powers granted to a health care agent include:

  • The power to consent to, withdraw or refuse any care, services, treatment or procedures otherwise designed to diagnose, maintain or treat a person’s physical or mental health
  • The power to admit or discharge a person from the hospital or any other medical facility
  • The power to access medical records, and disclose the contents to the necessary medical providers and other interested parties
  • The power to make decisions concerning the disposition of a person’s remains

It’s important to understand that while a health care agent is afforded significant decision-making authority, he or she is nevertheless expected to take a person’s treatment preferences as outlined in the ADHC into account, as well as the person’s known spiritual beliefs and any prior conversations they might have had with them concerning this admittedly somber topic.

The role played by end-of-life treatment preferences

When executing an ADHC, individuals can elect to forgo appointing a health care agent and instead just outline their treatment preferences concerning end-of-life care. Specifically, their treatment preferences can be expressed to cover either of the following situations:

  • They are in a terminal condition, meaning they are in an irreversible or incurable state that would likely result in death in a short period of time absent medical intervention.
  • They are in a state of permanent unconsciousness, meaning they are in an irreversible or incurable state in which they exhibit no behavioral response to external stimuli, or are otherwise unaware of themselves or their surroundings.

Regarding the actual preferences for end-of-life treatment, people executing an ADHC can direct that one of the following is carried out:

  • Attempt to extend their life as much as possible using all life-sustaining procedures, including artificial nourishment or hydration
  • Permit natural death to occur, meaning no life-sustaining procedures
  • Proceed with only the life-sustaining procedures they outlined in the ADHC

It’s important to note that unless a person expressly declares otherwise, these treatment preferences will be rendered moot if they have named a health care agent, and he or she is both willing and available to make these decisions. However, as outlined above, the health care agent is required to consider any end-of-life treatment options stated in the ADHC.

As is clear from the foregoing discussion, this is an incredibly important issue that requires careful consideration and a meaningful dialogue with loved ones. Indeed, once a decision has been reached, a person should strongly consider meeting with an experienced legal professional who can answer all of their questions about the ADHC, walk them through its completion and ensure its proper execution.

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Kevin Tharpe

With 25 years of experience, Kevin understands how estate planning, special needs planning, and government benefits programs work together. This is a crucial element of a thorough plan. He explains your eligibility for benefits programs and ensures that you do not make costly mistakes that may disqualify you or deplete your assets.

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