Understanding Healthcare Directives
A healthcare directive helps communicate your medical wishes and identify who can speak for you if you cannot make or communicate healthcare decisions yourself. The terminology and legal requirements vary by state, but the purpose is simple: make your wishes known before a crisis occurs.
A healthcare directive provides instructions about your healthcare and can designate someone you trust to make or communicate medical decisions when you cannot. The exact documents, powers, terminology, witnessing, and execution requirements depend on applicable state law.
What Is a Healthcare Directive?
A healthcare directive is part of planning for the possibility that illness, injury, cognitive decline, or another circumstance leaves you unable to communicate healthcare decisions personally.
Depending on the state, healthcare planning may involve one document or several documents working together.
State Your Preferences
Provide guidance concerning medical treatment and other healthcare decisions according to the options permitted under applicable law.
Choose Someone You Trust
Designate a trusted person to make or communicate healthcare decisions if you cannot do so yourself.
Give Your Family Direction
Written instructions can help family members and healthcare providers understand your preferences during difficult decisions.
Different States Use Different Names
There is no single national healthcare directive form. Depending on the jurisdiction and purpose, you may encounter terms such as:
- Advance healthcare directive.
- Advance directive.
- Healthcare power of attorney.
- Medical power of attorney.
- Healthcare proxy.
- Living will.
- Healthcare agent designation.
Some states combine healthcare instructions and appointment of an agent into one document, while others may address those issues separately.
Choosing Your Healthcare Agent
Your healthcare agent may eventually be asked to make important decisions at an emotionally difficult time.
Choose someone who understands your values, is willing to serve, can communicate effectively with medical professionals and family, and is prepared to advocate for your wishes.
Someone You Trust
Your agent may be responsible for decisions involving deeply personal healthcare choices.
Someone Who Will Speak
Your agent should be comfortable communicating with doctors, hospitals, caregivers, and family members.
Someone Who Knows You
The person should understand your wishes and values rather than simply making the decisions they would choose for themselves.
What Can a Healthcare Directive Address?
The permitted instructions and authority vary by state, but healthcare planning may address matters such as:
- Selection of a healthcare agent.
- Medical treatment preferences.
- Life-sustaining treatment.
- Pain management and comfort care.
- End-of-life preferences.
- Organ and tissue donation.
- Other healthcare instructions permitted by law.
The goal is to provide enough direction that your agent and healthcare team understand your wishes and values when you cannot communicate them yourself.
What Is a Living Will?
A living will generally communicates healthcare preferences for certain circumstances in which you cannot communicate decisions yourself.
Despite the name, a living will is different from a Last Will and Testament. A Last Will and Testament addresses matters associated with your estate after death. A living will addresses healthcare wishes during your lifetime.
A living trust primarily deals with property and its management. A living will deals with healthcare preferences.
Healthcare Authority vs. Financial Authority
The person authorized to make healthcare decisions is not necessarily the same person authorized to manage your finances.
A financial power of attorney generally addresses financial and property matters. Healthcare planning documents address medical decision-making.
You may choose the same person for both roles or different people depending on your circumstances and applicable law.
Someone who is excellent with money may not be the person you want making difficult medical decisions — and vice versa.
Why Do I Need a Healthcare Directive If I Have a Living Trust?
A living trust primarily addresses property held in the trust and the authority of the trustee.
It generally does not replace the documents used to communicate healthcare wishes or designate someone to make medical decisions.
That is why healthcare directives, financial powers of attorney, wills, and living trusts are commonly coordinated as different parts of a broader estate plan.
Don't Just Sign It — Talk About It
A signed healthcare directive is important, but communication can make the document much more useful.
Consider discussing your wishes with the people you have selected to serve as healthcare decision-makers.
They should know:
- That you selected them.
- Where your healthcare documents are located.
- What matters most to you regarding medical care.
- Who else should be involved in important conversations.
- Who should have access to copies of the documents.
A conversation today can make difficult decisions clearer for everyone later.
Make Sure the Documents Can Be Found
Healthcare planning documents are most useful when the appropriate people can access them when they are needed.
Depending on your circumstances, copies may be appropriate for your healthcare agent, physician, healthcare system, attorney, or other trusted people involved in your planning.
Document storage and communication should be part of the estate-planning process.
Healthcare Directives Are State-Specific
TrustMaker serves families across multiple states, but healthcare directives and medical decision-making laws vary by jurisdiction.
Differences may include:
- The name and form of the document.
- Witness requirements.
- Notarization requirements.
- Who may serve as healthcare agent.
- The scope of an agent's authority.
- When the agent's authority becomes effective.
- Requirements for modifying or revoking the document.
- Rules governing particular healthcare decisions.
Even when an existing document may continue to have legal effect, reviewing it for the new jurisdiction can reduce uncertainty and help ensure that it reflects your current wishes.
When Should You Review Your Healthcare Directive?
Your healthcare preferences and relationships can change over time. Consider reviewing your documents after significant changes such as:
- Marriage or divorce.
- Death or incapacity of your healthcare agent.
- Moving to another state.
- A significant medical diagnosis.
- Major changes in your health.
- Changes in family relationships.
- A change in your healthcare wishes or values.
The TrustMaker Approach
Healthcare planning should not be treated as an isolated form at the back of an estate-planning binder.
TrustMaker helps organize the people you want making decisions, your estate-planning documents, your property, and the broader family plan while accounting for the jurisdiction involved.
When individualized legal advice, specialized healthcare instructions, unusual family circumstances, or other legal complexity is involved, appropriate professional resources can be incorporated into the process.
Who manages what you own if you cannot — and who speaks for you about your care if you cannot?
Common Healthcare Directive Questions
What is an advance healthcare directive?
It is a healthcare planning document that can communicate medical wishes and, depending on applicable law, designate someone to make or communicate healthcare decisions when you cannot.
Is a healthcare directive the same as a living will?
Not necessarily. Terminology varies by state. A living will generally focuses on healthcare instructions, while other healthcare documents may also appoint an agent to make decisions.
Is a living will the same as a Last Will and Testament?
No. A living will concerns healthcare decisions during life. A Last Will and Testament generally addresses estate matters after death.
Can my spouse automatically make all of my medical decisions?
Do not assume that marriage alone provides exactly the authority you want in every circumstance. Healthcare decision-making rules vary by state, which is one reason formal healthcare planning documents are important.
Can I name someone other than a family member?
Depending on applicable state law, you may be able to designate another trusted person. Some jurisdictions restrict certain individuals from serving in particular circumstances.
Can I change my healthcare directive?
Healthcare directives can generally be changed or revoked according to applicable law while you retain the legal ability to do so. State requirements should be followed.
Should I review my directive if I move?
Yes. Because healthcare directive laws and forms vary by state, relocation is an excellent time to review the document.
Who should have a copy?
Depending on your circumstances, copies may be appropriate for your healthcare agent, physician, healthcare provider, attorney, or other trusted people who may need access to it.
Related Resources
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