Advanced Directives

Most people prefer to make their own decisions regarding their health. From what prescriptions to take, surgeries to undergo, or bloodwork to be drawn, people want to feel in control over their own bodies. Unfortunately, there may come a time when the individual is not able to make those decisions themselves, whether due to injury, illness, or aging. Even when the individual cannot make these decisions, they might still like to have some say over them. How can they have that say when they are unable to communicate due to incapacitation? They can express their wishes through advance care planning. At Rhodium Law, our experienced estate planning team is prepared to assist individuals as they consider the future and what their wishes might be under different circumstances so they can communicate those wishes before they can no longer do so.

Advance care planning refers to the process where an individual thinks about the future and what their healthcare wishes may be in situations where they cannot speak for themselves. For example, they may consider what their wishes would be if they were in an irreversible coma and only being kept physically alive by artificial means. As they consider these wishes, they then communicate them to their loved ones to ensure that those wishes are carried out if or when the time comes.

Of course, verbal communication is only one part of the process. Verbal instructions to loved ones are not enough to be legal, however. Therefore, as part of the advance care planning, the individual will complete documents called advance directives.

Advance directives are legal documents that legally acknowledge an individual’s wishes regarding their healthcare. When these wishes are written into an advance directive, it is clear that this is what the individual would want. With verbal communication, loved ones may argue over what the individual wants if the individual said different things at different times. Completing advance directives eliminates doubt and confusion.

Advance directives include living wills, powers of attorney, do-not-resuscitate orders, and organ and tissue donation information. Individuals are not obligated to complete all of these advance directives. Additionally, each state has its own laws regarding advance directives and what must be included on the forms. In Ohio, the two primary advance directives that people most commonly use are a health care power of attorney (POA) and a living will.

Many individuals are tempted to put off creating advance directives, particularly when they are younger and in the “prime of life.” They feel that these documents are more appropriate for aging adults whose health is beginning to decline or who are preparing for their eventual death. But there is no specific age or stage of life when advance directives are more important or practical. Any adult of any age, relationship status, or health status, should consider whether advance directives are appropriate for them. Advance directives can be used when an individual is older and incapacitated as a result of health or age-related conditions, but they can also be used when an individual is in a car or work accident while still young and otherwise healthy.

Advance directives are optional. In Ohio, if an individual does not have an advance directive and is not able to make their own decisions, the law recognizes certain people as being able to make decisions for that individual. This is called the Order of Decision Makers. This order first recognizes the agent named in a health care power of attorney, if there is one. If there is not, the spouse is first in line to make decisions, followed in order by the individual’s adult children, the individual’s parents, a majority of the individual’s adult siblings, or if none of those are available, the nearest other relative.

A health care power of attorney allows an individual to specify who they want to make decisions for them. This may be their spouse or an adult child. For someone who is unmarried or does not have children, or who knows that a relative would not honor their wishes, it may be a close friend or a roommate. Additionally, completing a POA allows the individual to name an alternate agent if the primary agent is unavailable when decisions need to be made.

There are other reasons to create advance directives. If an individual has strong wishes about their end-of-life care, they should create advance directives. Having business or financial matters that must be tended to even if the individual is incapacitated is another reason. If the individual has a family history of certain life-threatening conditions, such as cancer or heart disease, and is anxious about what may happen in the future, creating advance directives may provide peace of mind.

Different advance directives have different requirements regarding what should be done after they have been completed. In Ohio, advance directives do not require a lawyer to complete but may need to be signed in front of a notary or two witnesses who are not the signer’s primary physician or a relative by blood, adoption, or marriage.

Once signed, the principal should safely store the original health care power of attorney and provide the agent with a copy so they can show it when they need to use it. Depending on the purpose behind the POA, a financial power of attorney may need to be recorded with a state or county government office. Individuals completing POAs for reasons other than health care should consider consulting with an attorney to confirm what may need to be done to ensure the validity of their POAs.

After signing, copies of an individual’s living will should be provided to their primary care physician, close relatives, and their health care proxy, if they have one. Because this document expresses the individual’s wishes in end-of-life circumstances, it is important to ensure that anyone who may be involved in those decisions has a copy of and understands the terms of the living will. The individual may also want to carry a copy of their living will, or a wallet card that indicates they have one with their physician’s contact information and where the living will is stored, to ensure that medical professionals are always made aware of the living will’s existence. The living will may also be recorded for a fee in certain Ohio counties, but individuals should be aware that this will make the living will public record for anyone to read.

There are several other options for advance directives, including do-not-resuscitate orders, physician orders for life-sustaining treatments, and organ and tissue donations. All of these advance directives serve specific purposes and depending on the individual’s needs and wishes, may not always be required. Individuals may wish to consult with their health care provider and an estate planning attorney to discuss their unique needs and wishes to determine which advance directives they need.

While it may not be a pleasant thought for anyone, it is important to ask yourself: what are your wishes for the end of your life? How far do you want medical professionals to go to prolong your life and under which circumstances? When your loved ones are confronted with decisions about your health under this extreme stress, do you want them to question what to do, or do you want them to know precisely what you want? Advance directives provide peace of mind and comfort for you, knowing your wishes will be known and honored, and your family, knowing that they do not have to wonder what you would want because you have already made it clear for them. At Rhodium Law, we are ready to help you navigate the delicate and emotional decisions required to create the appropriate advance directives to ensure that the end of your life is as peaceful and smooth as it can be. Contact us for a free consultation to discuss your end-of-life needs and complete your advance directives as part of a comprehensive estate plan.