Health Care and Estate Planning: Legal Documents versus Medical Orders

The two primary health care documents attorneys prepare for clients as part of an estate plan are a health care power of attorney and an advance directive.  An advance directive is also referred to as a “living will” or a “declaration for a natural death.”  A health care power of attorney may contain an advance directive, in which case there may be only one multipurpose health care document in an estate plan.

Health Care Powers of Attorney

A health care power of attorney is a document where the principal appoints an agent to make health care decisions on their behalf typically upon one or more physicians determining that they are no longer capable of making or communicating their own health care decisions, either temporarily or permanently. A health care power of attorney also authorizes the health care agent to receive oral and written disclosure of health care information necessary to make the decisions and is, in effect, a HIPAA release to the health care agent.  The agent is also typically given authority to admit and discharge the principal from a health care facility and retain and terminate health care providers on the principal’s behalf.  Finally, the health care power of attorney may provide instructions for the health care agent with respect to the disposition of remains or authorization to donate organs, or limitations on such as cremation only or donation of organs for any purpose except anatomical study. 

Advance Directive aka Living Will aka Declaration for a Natural Death

An advance directive is a document which allows a declarant to express a desire that they not receive life-prolonging measures if any or all of the following apply:

a. The declarant has an incurable or irreversible condition that will result in the declarant’s death within a relatively short period of time; or

b. The declarant becomes unconscious and, to a high degree of medical certainty, will never regain consciousness; or

c. The declarant suffers from advanced dementia or any other condition resulting in the substantial loss of cognitive ability and that loss, to a high degree of medical certainty, is not reversible.

The declarant can also specify any exceptions such as the desire to receive artificial hydration, nutrition or both in these situations and other details such as whether their health care agent has the authority to override the declaration. 

Medical Orders (DNRs and MOST)

Attorneys do not prepare medical orders for clients such as “do not resuscitate” orders (DNRs) and “medical orders for scope of treatment” (MOST).  These are medical documents which must be executed in consultation with and signed by a medical professional. 

A DNR is an official form, signed by patient and physician, which is generally printed on yellow paper, and which provides the patient’s wishes to decline resuscitation in the event of cardiac or pulmonary arrest.  This is a limited form which generally has an effective date and a expiration date.  A MOST is also signed by patient and physician but provides more comprehensive instructions regarding CPR, antibiotics and artificial hydration and nutrition. While a MOST may sound very similar to an advance directive, it is generally intended to reflect the patient’s current preferences for a limited period whereas an advance directive is intended as long-term instruction regarding withholding or withdrawal of life sustaining procedures under certain circumstances. 

A MOST may temporarily suspend a conflicting advance directive while the MOST is in effect.  For example, if an advance directive indicates a patient, without exception, does not want life sustaining procedures if the patient has an incurable or irreversible condition but, in consultation with a health care provider, the patient decides they do want antibiotics or artificial hydration for the next 60 days and executes a MOST to indicate such, the MOST will suspend the advance directive with respect to no exceptions and allow for antibiotics and artificial hydration during the 60-day period. 

In summary, comprehensive estate planning for health care requires consultation with both an attorney and a physician.  If you need formalize your health care desires, please contact our office. 

Estate Planning & Admin