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Advance Healthcare Directives

While most states provide a means for a family member or a friend to make medical decisions for you if you become incapacitated, without an advance directive, the person(s) authorized to make healthcare decisions for you may not be whom you would choose. For instance, in Arizona a spouse has first priority (regardless of the length of marriage), followed by children, then parent(s), then a “domestic partner,” then sibling(s), then a concerned friend. Therefore, if you want someone with lower priority to act as your healthcare agent and/or you want to provide them and your healthcare providers with any instructions regarding your care, you must sign a health care power of attorney and a living will.

Estate planning is not all about those whom you leave behind. Of course the reason most of us start thinking about our estate plan is to answer questions concerning our assets and loved ones following our demise. However, a very important component of a complete estate plan addresses our healthcare desires when we are no longer able to make and/or convey our healthcare decisions.

Advance Directives are documents which provide instructions to your family, medical providers and others about what kind of medical care you want (or do not want) if you are unable to give those instructions personally.

There are typically two types of Advance Directives and both should be incorporated (whether separately or combined into a single documents) into your estate plan. The first Advance Directive is a “Living Will”. A Living Will gives instructions to your medical care providers as to the kinds of care to provide or withhold depending on your medical condition. The various states have different requirements for Living Wills to be valid, but most are quite simple.

The second form of Advance Directive which is typically incorporated into an estate plan is a Health Care Power of Attorney (“HCPOA”). A health care power of attorney, which in some states is referred to as a healthcare proxy, differs from and complements a Living Will. Where a Living Will provides direction, through a HCPOA you empower an agent to sign consents, discuss health care issues with medical care providers, obtain second opinions, and take other actions which you could take if you were able. In some states, like Arizona, a HCPOA can include special provisions which will allow your agent the authority to place you in a mental health treatment facility, which would usually require either your consent or court order. Obviously these mental health powers are not for everyone and thus require special provisions which are not included in the typical HCPOA. However, like the Living Will, this document is typically easy to obtain and execute and is an essential element of your estate plan.

While there are two different types of Advance Directives, almost all states allow you to execute both a Living Will and a Healthcare Power of Attorney. Therefore, since the purposes of these two documents are complementary to one another, the living will to instruct your heath care providers and the HCPOA to authorize a person to insure those instructions are carried out, both documents should ordinarily be incorporated into your estate plan. Furthermore, since these documents are revocable, you can typically modify one or both of these documents in the event of a change in circumstances or you simply change your mind regarding one of your instructions or whom you want to designate as your healthcare agent.

Forms for living wills and HCPOA’s are typically readily available via local agencies on aging, hospitals, internet sites, stationery and computer software stores. However, care must be taken to ensure that the forms comply with local law. Thus, while it is not necessary to hire an attorney to prepare these documents, if you are already having your estate plan prepared or reviewed by an attorney, the added costs of including these documents is typically nominal and comes with the knowledge that your Advance Directives will be in compliance with local requirements.

The foregoing information about Advance Directives is designed to help readers safely cope with their own legal needs. However, such information is not the same as legal advice -- the application of laws relating to your specific circumstances. Although the information contained herein is believed to be accurate and useful, the author recommends you consult a lawyer if you want professional assurance that the foregoing information, and your interpretation of it, is appropriate to your particular situation.

Will Conway is a partner in Phillips Moeller & Conway PLLC. He specializes in estate planning.
405 West Franklin Street
Tucson, AZ 85701

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