Clients often ask us to draft a living will or heath care power of attorney to authorize someone to make health care decisions on their behalf. In Minnesota, we most commonly refer that document, which appoints someone to make health care decisions on behalf of the person granting that power, as a health care directive. The document outlines the health care decisions including consent, refusal of consent, or withdrawal of consent to certain kinds of health care. A health care directive authorizes who you, as the principal, want to make your health care decisions. It also serves as a written statement of your values, preferences, guidelines, or directions regarding health care. Anyone 18 or older can execute a health care directive as long you are of capacity at the time of execution. The legal requirements in Minnesota for creating a valid document for health care decisions are as follows: the document must be in writing, be dated, state the principal’s name, be executed by the principal or on their behalf by someone with authority, be either notarized or witnessed, and include health care instructions. Witnesses cannot be the nominated agent.
Often times, clients bring health care directives from their healthcare provider for our review. Generally, these documents are sufficient, as long as the legal requirements are met. Clients sometimes ask if it is necessary to have this document if they are married, assuming their spouse will automatically have the authority to decide. While that is likely true, having a document that states your wishes is a comfort to your family during what are often emotional and trying times. It is a gift to be prepared and communicate your wishes. Medical providers will ask for these documents when someone is admitted, and having terminal illness instructions or do not resuscitate language will allow the provider to know your wishes up front in the event of a terminal condition or vegetative state. The document can also include your other wishes, such as burial, cremation, or funeral service details. In the event you are a single person with a partner, medical providers will likely look to family members before friends, so it is important that you nominate the person you want making those decisions. On occasion a dispute arises as to end of life decisions; as lawyers, we live in the wake of the Terri Schiavo case. To avoid that type of situation, we encourage all of our clients to include health care directives in their estate plans. Additionally, if you have a diagnosis and want to be specific regarding what types of treatment you will endure, we can tailor the document to meet your specific needs.