Planning for Incapacity: Healthcare Concerns

As part of a series of recent posts discussing multiple purposes of drafting a will besides the dispensation of estate assets, I here want to address yet another supplemental purpose of drafting a will: making plans concerning healthcare decisions that may need to be made at a time when you yourself cannot make them on your own behalf.

Being able to make your own decisions concerning your body is a well recognized constitutional right under substantive due process. It is generally true that, as an adult, no one else can make medical decisions for you. However, what if you are rendered comatose or otherwise incapacitated and critical medical decisions need to be made? Thankfully, such issues can be addressed in your will through advance directives, or commonly referred to as a living will.

A living will appoints an agent who is authorized to make these critical medical decisions on your behalf if you are rendered incapable of making them yourself. The appointment in a living will is often accompanied by additional directives for the agent regarding what your wishes would be in an end-of- life or other hypothetical situations related to incapacity. Perhaps the most common directive addresses what the testator would like to have done if medically determined to be in a vegetative state only kept alive by life support. Unlike clearly set fiduciary duties assigned to a durable power of attorney over an incapacitated person’s finances, the duties of an agent appointed in a living will are still somewhat unsettled in the law as it stands. With that it is clearly important to consider who you would want your agent to be under a living will to ensure it is someone who would serve your best interests.


Image by: Ivana Vasilj