Amy & Dan Smith's Planning for Life: Health Care Decision Making

Because of the evolution of the law, documents relating to medical decision making have a variety of names, which together are confusing if not downright bewildering.

The Advance Directive, Medical Directive, Advance Health Care Directive, Medical Power of Attorney, Durable Power of Attorney for Healthcare, or Power of Attorney for Healthcare can all refer to a document wherein:

  1. You instruct medical caregivers as to how you wish for them to proceed if you are in a condition in which you cannot make decisions or communicate your desires regarding medical treatment; and,
  2. You appoint an agent to make decisions on your behalf under certain circumstances. In addition the document may – and in current practice usually does – include Living Will provisions, which pertain to end-of-life circumstances.

For simplicity (and consistent with the Code of Virginia) we will use the term Advance Directive. While there could be separate documents, the Advance Directive in current practice usually includes:

  1. Your wishes as to healthcare treatment generally;
  2. Your wishes in end-of-life circumstances; and
  3. The appointment of your agent to make decisions on your behalf. The person so appointed may be variously referred to as your Agent, Attorney-in-fact for Healthcare, Surrogate, Patient Advocate or Health Care Proxy. The document can also specify an anatomical gift to be made after death of any part or all of the body.

The Advance Directive is inapplicable unless two medical caregivers (who must be either a licensed physician or clinical psychologist) certify in writing that the patient is unable to make an “informed decision.” Until such a certification is made, the patient will be making his/her own decisions for medical treatment. Note that your agent cannot act on your behalf until the certification is made, and the agent does not make the certification.

An oral Advance Directive may be enforceable in some circumstances, but a written Advance Directive is highly recommended. Two witnesses are required to sign the document. There is a subtle trap here: a power of attorney is valid if notarized. Therefore, a power of attorney appointing an agent for health care decisions (“a “Healthcare Power of Attorney”) should be enforceable. However, in some states (e.g., Florida) a notarized Healthcare Power of Attorney with no other signature is unenforceable as lacking the second witness.

Interestingly, suggested forms instruct the agent to follow the desires and preferences for treatment as set forth in the form, but the standard form does not provide alternatives for such preferences. I find that it is very difficult for the average person to specify the type of treatment he or she might want in the abstract—artificial nutrition and hydration, mechanical breathing, and amputation, to name a few. Obviously, much would depend on the circumstances at the time. For example, what if I’m in a coma with little likelihood of full recovery of my mental faculties? On the other hand, what if I don’t have a terminal condition, but my mental faculties will be substantially diminished even after recovery? How would such conditions affect my choice of treatment?

Life, as we know, does not always lend itself to pre-scripted scenarios. I can say from personal experience that there are gray areas calling for loving, wise, and sometimes courageous judgment. At a basic level, appointing an agent is an issue of trust: as the principal you are appointing someone who may be making life and death decisions on your behalf; the agent also must trust your choice of him or her as decision maker without second guessing, which can be self destructive.

From "Amy and Dan Smith's Planning for Life" column appearing monthly in the Blue Ridge Leader, Loudoun County, VA.

The foregoing article contains general legal information only and is not intended to convey legal advice. For legal advice regarding estate planning, the reader should contact his/her lawyer.

Daniel D.  Smith is a partner in the law firm of Smith & Pugh, PLC, 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176 (703-777-6084, www.smithpugh.com).

Amy V. Smith Wealth Management, LLC is an independent firm. Amy V. Smith, CFP, CIMA offers securities through Raymond James Financial Services, Inc., member FINRA/SIPC. Her office is located at 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176. (Tel: 703-669-5022, www.amysmithwealthmanagement.com.) Any opinions are those of Amy and Dan Smith and not necessarily those of Raymond James. Raymond James does not guarantee that the foregoing material is accurate or complete and does not provide legal advice. Dan Smith is not affiliated with Raymond James.