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In this blog post, we discuss how to choose the right healthcare directive. Healthcare directives are important estate planning documents that can help individuals to feel secure in the present and safeguard their rights in the future. Generally speaking, most adult Ohioans have the legal right to use these documents for such purposes as choosing a healthcare proxy who will be responsible for making medical decisions on the principal’s behalf in the event that the latter is unable to make or communicate those decisions for themselves, and for outlining ahead of time their preferences regarding certain common questions related to long-term and end-of-life care.
The Ohio State Bar Association explains that advance directives is a term used by estate planning attorneys for a category of documents that allow individuals to designate other parties to make important decisions regarding medical care and life-sustaining treatments in the event that the person creating the estate plan is unable to communicate or make those decisions on their own behalf. Adult Ohioans of sound mind have the legal right to use these documents to help safeguard their rights in case of future incapacity.
Sometimes individuals outside the legal profession may refer to these same types of documents as medical directives or healthcare directives. The term “advance directives” tends to be the preferred term among estate planning attorneys, in part because it underscores the role these documents are designed to play in incapacity planning.
Incapacity planning, in turn, refers to a subcategory of estate planning focused on developing plans that may be activated during an individual’s life, in the event that they are for any reason unable to take an active role in the management of their own affairs – by contrast to other common estate planning documents that are only activated with the planner’s death, such as a Last Will and Testament. An Ohio estate planning attorney with Rhodium Law may be able to help you evaluate a variety of possible incapacity planning structures and guide you in how to choose the right healthcare directive to fit your needs.
Laws vary state-by-state with regard to determining “next of kin” status, or the authority for making health care decisions on another person’s behalf if the individual in question has not prepared advance directives. States also vary somewhat in how the existence of these incapacity planning documents should be communicated to medical professionals and the requirements for verification. As explained by the Cleveland Clinic, laws in Ohio establish what is known as an “order of decision makers” that will be activated when an individual is unable to make or communicate health care decisions on their own behalf.
In Ohio, individuals who are already subject to a state-appointed guardianship will have their health care decisions made by the person already filling that role. Otherwise, if the individual has established a valid health care power of attorney, a medical determination of decision-making incapacity will activate that document and the agent named therein will be authorized to make medical decisions on the principal’s behalf. If there is no valid document establishing a health care power of attorney, then the responsibility for making health care decisions will devolve upon family members by degrees according to Ohio’s statewide structure for determining kinship: first to the principal’s spouse, then to a majority of his or her adult children, then to his or her parents, if either is living, then to a majority of the principal’s adult siblings, then to the individual’s next living relative.
The system is similar to that employed for determining intestate succession during the probate process when an individual has died without a valid Last Will and Testament, but Ohio intestacy laws will divide an estate among heirs who share the same degree of kinship to the decedent. For medical decisions, the “majority of…” provision is applied as a means of avoiding confusion and to ensure that any disagreements among the family members will not delay important decisions related to the incapacitated person’s care.
Importantly, choosing a healthcare proxy named in a valid durable power of attorney for health care makes it possible for a principal to interpose their own wishes and preferences and identify as agent someone they trust – a person who may or may not be a “blood” relative under Ohio’s legal system of kinship. For Ohio residents estranged from their families, or simply those who have close romantic or friendship bonds that might not otherwise legally be recognized in a crisis, the health care power of attorney can help to prevent such tragedies as strangers, or distant family members who at best may not be familiar with the individual’s preferences, having to make medical decisions with far-reaching personal implications.
According to the National Institute on Aging, the two most common forms of advance directives are living wills and durable powers of attorney for health care. Individuals in Ohio may use either or both of these documents as part of their comprehensive incapacity planning strategy.
Writing a living will can in some ways be simpler than choosing a healthcare proxy – primarily because a living will is significantly less flexible, and applies in far fewer circumstances. A living will, in Ohio, exists solely to document the declarant’s wish to reject life-sustaining treatment, such as artificially supplied hydration and nutrition (e.g., “feeding tubes” and similar technologically-supported medical interventions). The living will is only activated when the declarant (the person who creates and signs the document) is unable to make informed medical decisions on their own behalf and is also either of the following:
In addition to artificially-supplied nutrition, declarants can use the living will to direct their treatment providers to issue “do not resuscitate” (DNR) orders, and a relatively standard template provided by the Cleveland Clinic offers an option for indicating whether the declarant would, or would not, like to make an “anatomical gift” (become an organ donor), although the latter option requires the filing of separate paperwork with the Ohio Department of Motor Vehicles. However, because an Ohio living will is designed primarily to provide individuals with a means for clearly specifying the treatments and medical interventions they explicitly wish to refuse, the document does not offer the flexibility to address some of the more complex medical decisions that may be covered in other healthcare directives.
A power of attorney is a document used by one individual, known legally as the “principal,” to appoint another person, who may be referred to either as the “agent” or as the “attorney in fact,” to make decisions or conduct business on the principal’s behalf. A power of attorney is usually considered “durable” if it remains in effect even while the principal in incapacitated, for instance by severe accident or illness. Since the circumstances in which a power of attorney would be needed for medical decisions are precisely those in which the principal is medically incapacitated, a health care power of attorney is generally written to be durable in this sense, and will usually function in much the same way as the healthcare proxy designations used in some states.
A principal who wishes to limit the duration of a power of attorney document in the simple sense of time elapsed has the option to specify a date of expiration in the document itself. This option may be useful in a limited range of situations. However, if a durable power of attorney for health care has already been executed due to the principal’s incapacity for making informed medical decisions on their own behalf, and the principal remains incapacitated for such decisions when the pre-specified expiration date for the power of attorney arrives, Ohio Revised Code § 1337.12 establishes that the power of attorney shall remain in effect until (or unless) the principal regains their capacity to make informed decisions regarding their own health care. While this provision is designed to prevent confusion and disruptions of care in the event that an individual is incapacitated, it also serves to underscore the importance of choosing a healthcare proxy you can trust implicitly, both over an extended period and under a variety of circumstances.
If you are a resident of Ohio considering advance directives, you may find it useful to discuss the available options with an experienced estate planning attorney. A member of the team at Rhodium Law may be able to sit down with you and review important considerations for choosing a healthcare proxy who can make medical decisions on your behalf in the event that you are unable, due to illness or injury, to make and communicate informed decisions regarding your own health care. The right healthcare directive for your circumstances will depend on a variety of factors, but most importantly it will depend on your own priorities and preferences.
Schedule an appointment with Rhodium Law to discuss your needs with a member of our compassionate and understanding team by calling our office today at (216) 699-8145 or by requesting an initial consultation.
