Health Care Directive

A Health Care Directive is an important document that should be part of any comprehensive Estate Plan.  This document is a tool which gives you the ability to name a trusted individual (and a backup) to make health care decisions on your behalf when you are unable.  The Health Care Directive can also specify what you want done in certain medical and post-death situations.

If you become incapacitated, this document will avoid the need for your family to seek a court-appointed guardianship.  A guardianship is a court process where someone is named to step in to make decisions for you regarding your health care and overall well-being if the court determines that you are no longer able to yourself.

By setting up a Health Care Directive, you get to choose who you want to be in charge of your health care and how you want your health care wishes carried out.  A Health Care Directive thus makes it much easier on your family, because they will not have the time, stress, and expense of going into court when you are incapacitated.  It’s a real gift to your family, and you should tell them about your Health Care Directive before they need to use it.

You have probably heard a variety of terms for a document giving someone the authority to make health care decisions for you, including living will, health care power of attorney, medical power of attorney, durable power of attorney for health care, or health care declarations.  In 1998, Minnesota law changed so that people could use one document for all of their health care instructions and preferences.  This document is called a Health Care Directive.  If you have health care documents created prior to 1998, you should review have those documents reviewed by an experienced Estate Planning Attorney to determine whether they comply with the new law.

In order for a Health Care Directive to be valid, it must be witnessed by two individuals or notarized by a Notary Public.  A Health Care Directive is valid unless you revoke it by destroying it, executing a new Health Care Directive that expressly revokes the prior one, or verbally expressing your intent to revoke it if certain conditions are met.

Many people confuse a Health Care Directive with a Do Not Resuscitate  and/or Do Not Intubate Order (“DNR/DNI”) or a Provider Order for Life-Sustaining Treatment (“POLST”) form.  Both of these latter documents are doctor’s instructions and are not a substitute for a Health Care Directive.

It is important to have a Health Care Directive even if you are married.  It becomes even more important to have one where you have a non-traditional family arrangement or second marriage.  It should be clear who you want to make health care decisions on your behalf if you are unable to do so.  As with all of your Estate Planning documents, your Health Care Directive should be immediately updated if you divorce or if the person you appointed as your Health Care Agent passes away.

Along with a Health Care Directive, it is also important to have a Medical Records Authorization, sometimes called a Limited Power of Attorney to Access Medical Records.  Federal law, specifically The Health Insurance Portability and Accountability Act of 1996 (“HIPPA”) limits the circumstances where health providers can provide access to your health information.  If you want your spouse, family, or other trusted person to have access to your Medical records so that they can speak intelligently with your doctor or pharmacist, it is important that you have a Medical Records Authorization drafted for you.

Please feel free to contact our office at (651) 501-5608 to arrange to have these important documents drafted for you.