An advance medical directive is an important piece of one’s estate plan. One of the fundamental rights enjoyed by every American is the right to bodily integrity; individuals have the right to decide what treatment they receive and what treatment they refuse. No one can do anything to an individual’s body that they do not authorize. The advance medical directive is an important legal tool that continues this protection after a person is no longer capable of making reasoned judgments. Recent changes in Virginia law have now established that the advanced medical directive is the primary means by which one controls what happens to oneself from the moment one is found by a physicians to be incapacitated until either recovery or death. Because this is often the period in which one requires the most extensive medical treatment, it only makes sense for individuals to make their wishes clear beforehand.
An advance medical directive can consist of a living will or, a medical power of attorney, either or both. Traditionally, a living will consisted only of any “end-of-life” decisions that an individual had made; essentially what the individual wanted done in the event that the individual was diagnosed with a terminal condition or was in a persistent vegetative state. These decisions were either a cessation and removal of all treatment, maintaining all possible medical care, or designating the power to decide to a named agent. One of the significant changes in the new Virginia law is to alter this format. A living will still states one’s wishes in the event of either of the above-mentioned circumstances; however, the living will now can be used as a means to express one’s wishes with regards to any treatment at any time after a person has been found by two physicians to be incapable of making a reasoned judgment. Now, individuals are able to set out any specific wishes they may have regardless of whether their condition is terminal. This means that one can specify treatments that one would like to receive or have performed and, similarly, can specify any procedures or treatments that one does not want performed under any circumstances. Because the new law has expanded the scope of the decisions one can make through a living will, it is no longer absolutely necessary to have an agent that is capable of making health care decisions on one’s behalf in these circumstances. One can meticulously detail all of the treatment options that one desires with only this instrument, and others (physicians, courts, and family members) will have to respect these treatment decisions.
It is difficult, however, to foresee all of the different contingencies that can occur because of illness and to try and document one’s wishes with regard to all of these different situations. After all, medical treatments advance quickly, and the treatments that are being used now might be updated or completely discarded in the future. Likewise, there are so many different illnesses and medical complications that can occur that it is impossible to say exactly what one might suffer from in the future. As such, many people choose to appoint an agent to handle health care decisions on their behalf, should there ever come a time in which they are unable to make these decisions for themselves. Appointing an agent allows for flexibility in confronting these issues, and gives the physicians when to explain the situation and possible solutions. A medical power of attorney can be used by itself, in which you designate all decision-making authority to your agent, or in conjunction with a living will. A living will is a good way of expressing one’s preferences on some of the larger, more common decisions that confront most people, but it also serves as a guide to the named agent, helping to express to the agent one’s opinions on treatment in general. When used together, the medical power of attorney will have a clause that empowers the agent to carry out one’s wishes as expressed in the living will; this helps provide a measure of comfort now as one will know that a trusted agent trust will be handling the treatments that have been specified, while at the same time, empowering the agent to use their solid judgment to confront situations that may arise. Ultimately, the decision is up to each individual, because the General Assembly has made it easier to maintain one’s autonomy and decision-making ability now in the event that at some point later one can no longer can make decisions, by making these two legal instruments more flexible.
Andrew Hook
Oast & Hook
www.oasthook.com
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