What is a Health Care Directive?

Prior to 1989, Minnesotans were unable to make statutorily supported decisions surrounding their health care upon incapacitation. The Minnesota legislature, in 1989, passed Chapter 145B, which authorized the use of Living Wills and laid the groundwork for our current legal framework. Today, Minnesota recognizes not only the Living Wills of Chapter 145B, but also the Health Care Directives of Chapter 145C.

What is a Health Care Directive?
A Health Care Directive is a document that sets forth your wishes upon your incapacity and even death. While you are still fully capable and healthy, this document does not affect any situations regarding your ability to make decisions surrounding your personal health care. However, upon your incapacity it does take effect and can direct the person you appoint to make decisions for you (if you regain capacity, it then loses its power again). An example would be if you were in an accident that left you breathing or eating via automated life support. Doctors indicate to your designated health care agent that you have an extremely limited chance of recovery. In this sad hypothetical, your health care agent could look to your Health Care Directive and see that where you could not eat or breathe on your own and had a remote chance of recovery, your desire was to be taken off of life support systems and be left to pass away naturally. Health Care Directives can also include instructions on things like preferred treatment options, Do Not Resuscitate orders, cremation and burial arrangements, organ donation, and virtually any other cultural, religious, or personal concerns that need to be addressed in end-of-life situations.

What happens if I do not have a Health Care Directive?
If you do not have a Health Care Directive, the health care provider lacks a point of contact for decision-making. After age 18, your parents are not going to be able to step in and make crucial decisions. In many cases, the hospital staff will decide who should speak for you. In specifically challenging situations, harsh disagreement among family members may arise as to treatment, certain surgeries, life support strategies, and end-of-life arrangements. Here, the court may need to step in and appoint a proxy. Whether this court-appointed individual is the person whom the patient desired to be their decision maker will be very unclear. Using the court system during such an urgent context also takes an unnecessary amount of time and energy that would be saved through the simple articulations present in a Health Care Directive.

How often should I update my Health Care Directive?
While there is no mandatory period of time to update or review a HCD, there is a golden rule of sorts that has been endorsed by the ABA Commission on Law and Aging. This rule has been deemed the “Five D’s.” As a recommendation, a Health Care Directive (and most key estate planning documents for that matter) should be reviewed:

1) When there is a Death in the family
2) When a Divorce occurs
3) When a new Diagnosis is received
4) When a serious Decline in health is experienced
5) Every Decade

For more information on Health Care Directives, be sure to consult with an Elder Law Attorney in your area who understands the requirements of your local laws. Health Care Directives do have varying requirements in different states as to what they are allowed to control and the form/content that is required for them to be effective.

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