Health care directives allow you to stay in control of your health, even when you are unconscious or in a coma. The Living Will Declaration ("Living Will") and the Health Care Power of Attorney ("HCPOA") are very important documents to include in your estate plan.

The Living Will and HCPOA are referred to as "health care directives" because they "direct" your physician on two important health-care topics: (1) who will make your health care decisions for you if you are unable to make those decisions yourself, and (2) your wishes for life-sustaining treatment. These documents can alleviate stress for your family members and reduce family conflict because you have made your wishes known.

Living Will

A Living Will is often confused with a Last Will and Testament. They are very different documents, however. A Last Will and Testament states who will inherit your probate assets, nominates an Executor, waives bond for the Executor, etc. The purpose of a Living Will is to state your wish that your dying not be artificially prolonged. You remain in control by declaring that if you are permanently unconscious or in a terminal condition, you do not want to be given life-sustaining treatment. You can also authorize the refusal or withdrawal of a feeding tube under certain circumstances.

If you are unable to make informed medical decisions, the Living Will is supposed to be honored if you meet the medical criteria. Two physicians must agree that either: (1) you are permanently unaware of yourself and your surroundings, or (2) you cannot recover from an irreversible, incurable, and untreatable condition, and death is likely to occur within a relatively short time if you do not receive life-sustaining treatment. If the Living Will is going to be used, your physician will make reasonable efforts to notify one of the persons you list as a "Contact" in your Living Will.

Having a Living Will does not mean you will not be given comfort care, however. Measures will be taken to relieve your pain or discomfort, but not to postpone your death.

HCPOA

The purpose of the HCPOA is to appoint someone to make health care decisions for you. It goes into effect only when you are unable to make health care decisions for yourself. A court does not need to declare you incompetent for the HCPOA to take effect. The person you name as your agent will make health care decisions for you based on your instructions and wishes and what is in your best interest.

Signing Requirements

In Ohio, the "State of Ohio Health Care Power of Attorney" and "State of Ohio Living Will Declaration" are widely used and recognized. I recommend them to every one of my estate planning clients. Many hospitals ask their patients if they have health care directives, and for those who don't, they often provide assistance in completing both forms.

The forms must be signed either before two independent witnesses or a Notary Public. You can give copies of these documents to your primary care physician and have them scanned into your medical chart at the hospital.

If you wish to be an organ donor, you can also complete, sign, and mail the accompanying Donor Registry Enrollment Form to the Ohio Bureau of Motor Vehicles. The donor form allows you to direct which organs are to be made available for donation and for what purposes your organs can be used. The donor form must be signed in the presence of two witnesses.

Final Note

One word of caution: You need to make sure that your HCPOA contains a HIPAA release. Without this release, your agent may not receive all your personal health information. You can either sign a separate HIPAA release or add an additional instruction in the HCPOA that your agent is authorized to receive all your health information protected under the Health Insurance Portability and Accountability Act ("HIPAA").

Maria Shinn has 20 years of experience in estate planning. You can contact her to discuss health care directives, Wills, Living Trusts, and POAs for you or your loved one.