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Estate Plan Documents Regarding Health Care Directives

Jul 14, 2022

A health care proxy and living will are legal documents that are commonly part of an estate plan. The health care proxy permits someone else (an “agent”) to make medical decisions for you if you become incapacitated and cannot make your wishes known. A living will outlines your preferences regarding those same medical decisions if you cannot make your wishes known.  

In the case of a health care proxy, choosing the right agent is very important. That person, typically a spouse or child, should be familiar with your wishes. An alternate or successor agent should also be designated in case your first choice is not available.

A living will typically address issues such as artificial nutrition and hydration and whether you do (or do not) wish such measures be implemented if you become incapacitated. The law generally assumes that you want everything be done to keep you alive. So, if that is not what you wish, it is important to say so. Typically, for the living will to become effective, a physician must certify that you are suffering from a terminal illness or are in a permanent vegetative state.

In addition to a health care proxy and living will, you may want to have a do not resuscitate (“DNR”) or do not intubate (“DNI”) order. Even if your living will addresses these situations, these orders are helpful when you are admitted to a new hospital or health care facility. This can avoid confusion during emotionally charged times.

Because all these directives must be in writing, and every state has its own forms and requirements, it is important to consult with a local attorney. All interested parties (e.g., attorney, physician, family members and anyone else acting as a heath care agent) should know where the documents are located and have easy access to them.

Finally, because of HIPAA privacy rules, it is a good idea to let your medical providers know with whom they can share your medical information if you are not in a condition to give that permission.

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Karen L. Goldberg

Karen L. Goldberg Partner-in-Charge of the National Tax Trusts and Estates practice, within the Private Client Services Group. She specializes in estate planning for closely held business owners, senior corporate executives and other high net worth individuals.

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