What happens when an unconscious person needs medical treatment? If a doctor doesn’t have permission to treat you (unless it’s an emergency) treatment would actually be an assault. The doctor could get a court order, but that takes time and money. That’s why when you go to the hospital for surgery or any other procedure, they always ask you for your medical directive or advance directive or some other similar kind of a document. I always refer to these as medical directives.
In reality, a medical directive is a two-part document. The first part is a healthcare durable power of attorney. This typically comes into play when a person is unconscious, but not necessarily in fear of death. Maybe they were knocked unconscious in an auto accident. They need treatment, but they are not at the point of death.
With a healthcare durable power of attorney, you can authorize a family member or friend to make health care decisions for you when you can’t. These decisions can include admission into a hospital or other health care facility; consent to surgery or some other medical procedure or treatment; the administration of medication; and rehabilitation treatment. It can basically permit any medical treatment or procedure that is available.
A healthcare durable power of attorney also allows doctors and hospitals to talk to your health care agent about your condition and treatment options. Many people in the medical profession believe that the federal Health Insurance Portability and Accessibility Act (“HIPAA”) prohibits medical professionals from sharing health-related information with relatives, including spouses (I have some stories). With a healthcare durable power of attorney, you can give medical professionals authority to talk to your designated representative.
You might have noticed that I keep referring to health care powers of attorney as “durable.” A simple or basic power of attorney is not valid when a person is unconscious or otherwise incompetent. They’re kind of useless. However, most state legislatures have enacted Durable Powers of Attorney Acts that allow powers of attorney to be valid even when someone is incompetent, provided that the required language is in the document. Since the time that you need a healthcare power of attorney to be valid is when you’re incompetent, your health care power of attorney really needs to be durable.
The second part of a medical directive is the living will. In many states (such as Missouri), it is assumed that a person wants to be kept alive for as long as possible using any means available. However, most people don’t want to be kept “alive” on machines when they are basically brain-dead. They would just as soon be allowed to die a natural death.
With a living will, when you are in a persistent vegetative state with no reasonable hope or expectation of improving, much less recovering, you can direct that either certain or all “extraordinary means” be withdrawn or withheld. This only applies. These extraordinary means can include artificial nutrition and hydration; surgery or other invasive procedures; heart-lung cardiopulmonary resuscitation; mechanical ventilation; chemotherapy; radiation therapy; dialysis; antibiotics; any other kind of invasive diagnostic test; and any other “life-prolonging” (or “death-prolonging” if you wish) medical or surgical procedures that are merely intended to keep you alive. A living will can also include a permissive hospice clause that allows family members the right to remove you from the hospital and to die at home. That is an important consideration for many people.
So a medical directive is an essential part of any estate plan. Without a valid and enforceable medical directive, you can be denied non-emergency medical treatment that you may actually need, or you can be kept “alive” on machines when it doesn’t make sense to do so. I think that most people would want to address these issues.
If you live in the St. Louis area or anywhere in Missouri and need a medical directive or living will contact Fred Vilbig today for your free consultation, please call (314) 241-3963 or complete and submit the form on the right.