What are advance directives?

Jun 1, 2021 | By: Neil Lyons

A typical estate plan consists of a will (in some cases a trust and pour-over will) and documents known as advanced directives.

While a will deals with how your property is to be distributed after you pass away, advance directives allow you to choose who will manage your property, make health care decisions on your behalf, in advance of your incapacity.

Advance directives typically consist of three documents: a durable power of attorney, health care surrogate designation, and living will.

Durable power of attorney

A durable power of attorney is one of the most well-known of the advanced directives.

It permits a principal to name an agent to manage the principal’s finances. The authority given in the durable power of attorney is quite comprehensive. From real property to digital wallets, the durable power of attorney gives an agent vast authority over the principal’s finances.

The durable power of attorney enables your agent to enter into contracts on your behalf. They can also apply for and receive a myriad of government benefits. Your agent can also sue and defend lawsuits on your behalf.

With the level of control and financial responsibility, selecting an agent is one of the most important decisions you can make.

Health care surrogate designation

A health care surrogate designation enables you to select someone to make informed healthcare decisions on your behalf. This designation allows your surrogate access to your healthcare information in order to make informed health care decisions for you. Consequently, your surrogate avoids being under the oppressive thumb of everyone’s favorite law to cite but few understand: HIPAA.

This responsibility means that you need to think carefully about who you select to be your surrogate. Your surrogate will have the ability to consent to a number of health care procedures on your behalf.

Such decisions are best made by individuals who are in a position to make them regardless of how difficult they may be. Sometimes, you can alleviate your surrogate from having to make the really hard healthcare decisions by executing a living will.

Living will

A living will is a document whereby you declare that if you have a terminal condition, an end-stage condition, or are in a persistent vegetative state, and if one or more physicians have determined that there is no reasonable medical probability of recovery from such a condition, life-prolonging procedures be withdrawn if those procedures would only artificially prolong the process of dying.

The living will alleviates your health care surrogate from having to make the difficult decision of ceasing life-prolonging measures in certain limited circumstances.

Securing advance directives

If you have questions about advance directives or want to know whether you can “get power of attorney” over your mother or father, contact an estate planning or elder law attorney for more information.