A medical directive is a legal document that contains instructions to be followed regarding a person’s health care decisions if they should become incapacitated. If a person becomes incapacitated, they may not be able to make and communicate their own decisions about medical treatment. A medical directive helps prepare the person for such situations by naming a “proxy,” or representative, who will make such decisions on the person’s behalf if they become incapacitated.
Some decisions already made may also be contained in a medical directive, for example, a request that the person not be resuscitated.
Medical directives are also known by other titles, such as living wills, instruction directives, advance healthcare directive, power of attorney for healthcare, or healthcare proxy. Whatever the title, the document provides a written record of the person’s intentions and wishes with regard to their medical care. Such a document can help prevent confusion and possible legal disputes over health care issues.
Most people usually assume that preparing a medical directive or advance healthcare directive is something that should be done when one reaches an advanced age, but every adult should have one. A person can become too ill to make their own healthcare decisions at any time, for example, as the result of a serious accident.
What Does a Medical Directive Cover?
A medical directive is usually limited to decisions regarding health care. Other issues, such as property distribution after a person’s death are typically covered by a person’s last will and testament. A medical directive will contain specific instructions that cover such issues as:
- Which person will serve as the proxy, that is, the agent representing the person, for the purpose of making healthcare decisions, if they become unable to make decisions for themselves;
- The scope of the proxy’s decision-making authority;
- Specific instructions regarding medical treatments, medicines, surgeries and transplants, donating organs, and the like;
- Final arrangements for burial, in some cases; this can also be addressed in a last will and testament;
- Whether the directive will expire if the person recovers their health;
- How legal disputes will be resolved, i.e., through a lawsuit, negotiation, mediation or other alternative methods for resolving disputes.
A medical directive alerts medical professionals as well as a person’s family to those treatments the person wants to receive or refuse. In most states this document only goes into effect if the person’s condition meets specific medical criteria and the person is unable to make decisions for themselves.
Some states combine several different forms into one so that a person can state their treatment preferences and name their health care proxy in one document. Medical directives are governed by state law and the law will vary from state to state. An experienced estate planning lawyer should know the legal requirements in the state where a person lives.
Among the most important topics that should be addressed in a medical directive are decisions about the use of emergency treatments to keep a person alive. Doctors can use several artificial or mechanical ways to keep a person alive, which, if not used or withdrawn after being started in an emergency, could result in death. These are decisions about such methods as the following:
- Cardiopulmonary resuscitation, CPR, which is used to restart a person’s heart if it has stopped beating or falls into a dangerously abnormal rhythm;
- Use of a ventilator, or respirator, machines that help a person breath;
- Artificial nutrition, which involves tube feeding and artificial hydration, which involves use of IV tubing, or intravenous fluids.
If a person does not want to be kept alive through the use of CPR, a ventilator or IV nutrition or fluids, this should be clearly spelled out in a medical directive. When making a medical directive, it is the time for a person to ask what they would want if an illness left them paralyzed or in a permanent coma with the need to be on a ventilator. If a person’s answer to use of a ventilator or artificial feeding or hydration is “no”, then the person would want to spell that out in a medical directive. And if, on the other hand, the answer is “yes,” then a person would want that expressed in a medical directive.
The current pandemic might alter a person’s view of certain artificial means of keeping a person alive. Perhaps, if a person is in a coma, they might not wish to be kept alive through use of a ventilator. On the other hand, if the ventilator is only a temporary measure that keeps a person alive until they can recover from an infectious disease, the person might approve its use. A person should consider these situations carefully.
When choosing a proxy, it is a good idea to choose a person whose values about the decisions they may have to make are close to the person’s own values. The proxy does not have to be a relative, but a person should discuss with a preferred person whether they want to serve before naming them. It is also recommended that a person have an alternate proxy.
The instructions in the directive should be as clear as possible. This will help prevent any additional confusion if the document does need to be enforced by a court of law. A person gives copies to their proxy, alternate proxy and their doctor, so it can be included in their medical records. It might also be wise to tell close family members about the fact that it has been made and where a copy can be found.
Experts recommend reviewing a medical directive from time to time, because a person’s preferences might change with age or with changes in a person’s health status. If a person changes the medical directive, again, people need to be informed and provided with new copies.
What If There is a Dispute over a Medical Directive?
Disputes over a medical directive can lead to some serious legal issues. For example, family members might challenge the validity or execution of the health care directive. They might challenge the decisions of the proxy or even argue that the medical directive was revoked and is no longer valid.
The person’s health may be at stake, so it may be necessary to take action quickly to resolve any disputes. A medical directive is basically governed by principles found in contract law, so a court will usually look to the written document in order to clarify any errors or misunderstandings.
A dispute can arise when a proxy disregards or breaches the instructions contained in the medical directive. This would be a violation of the directive, because the law imposes a duty to obey directive instructions on the proxy once they accept their role. If the proxy’s action (or lack of action) causes injury to the plaintiff, they may become liable for an award of damages.
Do I Need a Lawyer for Help With a Medical Directive?
Medical directives are a tool that is commonly used for securing one’s future health and safety. You may wish to consult an experienced estate planning lawyer in your area if you need help drafting or revising a medical directive.
Your attorney can draft the document to ensure that it meets the requirements of state law in the state where you live, and that your rights as a patient will not be violated. Also, your attorney can provide legal representation in the event of a dispute over your proxy.
