The Role of Healthcare Directives in Estate Planning

Healthcare directives, also known as advance care directives, are vital estate planning documents that specify your preferences for medical treatment if you lose the capacity to communicate and make decisions (for example, as a result of illness or injury). While a will only comes into effect after your death, healthcare directives are known as a ‘living will’ because they come into effect while you are alive. While this is also true for an Enduring Power of Attorney document, healthcare directives go into more detail regarding your preferences for medical treatment. While not legally required, healthcare directives are a very powerful safeguard should anything happen to you while you are still alive.

There are three main parts to a healthcare directive, which I will go over in this article.

1: Values Directives

This is a commonly overlooked aspect of a healthcare directive, but that does not make it any less important. A values directive outlines your beliefs and goals if something happens to you, and may include:

• What you define as a good quality of life and your preferred outcome if your health no longer meets that quality of life (e.g., loss of communication, independence,)
• Religious and/or cultural values. Many will want to observe religious or cultural rituals if they are nearing the end of their life, such as Catholic Last Rites.
• Your personal goals for your care such as whether you would like to be at home or a facility, who will care for you and other care instructions to make you comfortable.
• Your goals for your loved ones should you lose capacity, and how you want to be remembered by them. If you do not want to subject your children to having to care for you, and subsequently remember you by how you were in that period, then you can make that known.

2: Instructional Directives

While a values directive records your personal goals and preferences, instructional directives are legally binding instructions for treatment. They include specific treatments that you consent or refuse to and the circumstances in which you would consent or refuse them. For example, you may want to put a treatment limitation on mechanical ventilation and intensive care admission, and implement a Do Not Resuscitate Order if there is no chance of recovery. Values directives inform your instructional directives; instructional directives allow your loved ones to refuse certain treatments if your quality of life as outlined in the values directive is not being met. They allow you to have a dignified death with as little suffering as possible if it is medically proven that your condition will not improve enough to allow you to meet your quality-of-life standards.

3: Appointing a Substitute Decision Maker

Healthcare directives can, but do not have to, appoint someone to make decisions regarding your health on your behalf. An Enduring Power of Attorney is the easiest way to do so, but many choose to appoint a substitute decision-maker on their healthcare directive as well. These people, usually spouses or adult children, have the capacity to make decisions around refusing treatment and end-of-life care when you lose the ability to do so yourself. By appointing them as your decision-maker when you still have capacity, the law recognises that you trust that this person or these people understand your wishes and will make decisions accordingly. You can appoint more than one person in case your first preference is unable or unwilling to act, and you can also allow them to act jointly. Appointing multiple people to act together has the benefit of allowing all of your loved ones to agree and consent to any medical decisions, but also carries the possibility of dispute. For example, one party may want to enact a DNR order and the other may not.

To prevent disputes, arrange several conversations with your loved ones while preparing your advance care directive to ensure that they understand your wishes. This can be a difficult talk, since your wishes may not align with theirs, but it is a crucial one.

Healthcare directives are made while you have decision-making capacity to prepare for when you no longer have that capacity. They are particularly important for older people and people with a terminal or progressive medical condition. If you have any questions about a healthcare directive for you or someone else, please do not hesitate to contact me. I am here to help.

DISCLAIMER: This article is for informational purposes only and does not constitute legal advice.