CONTRIBUTED CONTENT — Have you decided who is going to make medical decisions for you if you cannot communicate or speak for yourself?
At Brindley Sullivan, we believe it’s important that people understand that without naming someone yourself, the law will try to fill that gap. The problem with relying on the law is that it doesn’t make it terribly clear who is to make decisions when you cannot.
If you’re married, your spouse will be able to make those decisions for you. If you’re in a second marriage, there can be tension between your children and your new spouse as to who should really be making decisions for you.
If you don’t have a spouse, the law says “a child” has the power to make choices for you. What is not clear is which child. The law doesn’t give a pecking order between the children, so if two or more children disagree on your treatment plan, no decision can be acted upon until the dispute is resolved.
If you have no children, next the law says “a parent” can make choices for you. If neither of them are able to do it, then “a sibling,” then “a grandchild” and then “a grandparent.” But all of these groups of people have the same problem: there is no priority given to any one person in each group. So if two or more people in a group disagree, there will be a stalemate until the disagreement is resolved.
All of this can be cured by signing your own advance health care directive to name exactly who you want making decisions for you if you cannot.
Your directive also gives you an opportunity to be specific about other issues that might come up regarding your health care. For example, you may authorize your agent to consent in your participation in medical research or clinical trials, even if you may not benefit from the results. You may give your agent the authority to donate your organs or to prolong your life even if you have given instructions that you don’t want your life to be prolonged.
Your directive should also stipulate that you want your health care providers to follow the instructions you give them, even if those instructions might conflict with directions you previously gave them in a written directive that you signed earlier. Additionally, your directive should state that your health care provider should always provide comfort measures to keep you comfortable and as functional as possible.
When you are near death or have a terminal condition, your directive allows you to give instructions about whether you want to prolong your life or to withhold lifesaving procedures and let you pass away. These are commonly known as “living will” provisions.
You can specify whether you want your agent to make the decision as to when life-sustaining care should be stopped, or you may make that decision in your directive now so your agent cannot interfere with your decision. Or you may make the declaration that you want to prolong life as long as possible and to stay on life support.
Naming your health care agent and setting out your end-of-life care in a directive is a responsible and important part of your complete estate plan. Today is the day to take care of these decisions to remove any questions about your care.
Written by M. SEAN SULLIVAN, founding partner at Brindley Sullivan.
About M. Sean Sullivan
M. Sean Sullivan is an attorney with 22 years of experience in will, trust and estate planning law, and he has worked with clients from all parts of the United States. His office offers free initial consultations at your convenience, which can be requested online or by calling 435-673-9220.
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