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Planning for the end

I’m not afraid to die, I just don’t want to be there when it happens.”

Perhaps this line from Woody Allen’s 1975 play, “Death,” rings true for you: it can be much easier to accept dying as an inevitable occurrence than something that is truly experienced.

While there may be uncertainty surrounding if and how you experience your own death, your friends and family who survive you will experience your death in a very real and emotional way.

As April 16 – National Healthcare Decisions Day – approaches, it is important to reiterate the steps that can be taken, and the documents that can be put in place, to communicate and memorialize your end-of-life wishes.

What’s the difference between a health care directive and a durable power of attorney for health care?

A health care directive is a written instrument in which you describe your preferences for end-of-life medical care and identify specific treatments (the use of artificially supplied nutrition and hydration, invasive procedures and resuscitation methods, etc.) that you wish to receive if you are persistently unconscious or in a similar state.

A durable power of attorney for health care is a written instrument in which you appoint another person to follow your wishes as expressed in your directive and make health care decisions that you have not specified. The person that you appoint is called your “agent.” This could be your spouse, child or friend, although your agent must be at least 18 years of age. Missouri law precludes your doctors or the employees of your doctors from serving as your agent (unless that individual is your relative). The agent named under your durable power of attorney for health care will not have the authority to make health decisions on your behalf until two physicians (or one – if you so specify) certify your incapacity.

Sometimes, health care directives and durable powers of attorney are combined into a single instrument. Even so, the health care directive and the durable power of attorney for health care serve separate purposes. Generally, upon your incapacity, the agent named in your durable power of attorney will work with your medical provider to make decisions on your behalf based on the wishes expressed in your health care directive.

I’ve named a trustworthy agent in a durable power of attorney for health care; do I still need a health care directive?

There are additional benefits associated with executing a health care directive. Not only does it help your agent navigate the specific health care decisions he or she must make on your behalf, but also, your health care directive will be particularly important if you experience a persistently unconscious or similar state.

In a highly publicized case, Cruzan v. Director, Missouri Department of Health, the Supreme Court concluded that Missouri’s interest in the preservation of human life is sufficiently strong to allow the state to err on the side of life by disallowing the withdrawal of artificial food and hydration unless the individual has clearly and convincingly expressed his or her wishes on the matter. Your health care directive is an opportunity to make your preferences distinct.

I already have a health care directive and durable power of attorney for health care – do I need to do anything else?

Because of the Health Insurance Portability and Accountability Act, there is a chance that your medical provider would not be permitted to release the health information that your agent or successor agent needs to make care decisions on your behalf. For this reason, you should be sure to provide a means by which you authorize your agent to access your protected personal health information. You can do so within your durable power of attorney for health care; however, there may be situations under which you want additional named individuals (such as a trustee under your trust instrument or other fiduciaries) to access your protected health care information. For this reason, you may consider executing a slightly broader HIPAA authorization that releases your health care information to all of the individuals you have named in your other estate planning instruments.

As a general matter, your health care directive and durable power of attorney for health care will remain effective until you die or otherwise cancel your instruments.

National Healthcare Decisions Day is not only a day about autonomy – it is a day about community. It’s a day to demonstrate respect for yourself and those that care about you by planning for your incapacity. Missourians can easily set up their own durable power of attorney for health care thanks to free materials provided by The Missouri Bar or by attending one of two dozen free clinics throughout the state where volunteer lawyers will assist them in completing written advance directives in accordance with Missouri laws. Events will take place in St. Louis, Kansas City and Springfield as well as St. Charles, Jefferson and Franklin counties. A full listing of events, times and locations is available online at http://missourilawyershelp.org/events/healthcare-decision-day/. For an attorney that can assist you in the preparation of estate planning instruments, use the free Lawyer Search feature offered by The Missouri Bar to find lawyers accepting new clients who practice in this area of law in your part of the state.

Alice Haseltine is an estate planning attorney at Kirkland Woods & Martinsen in Kansas City.

This information is intended as general information about the law and legal system. It is not to be considered as legal advice for your specific situation.

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