Living Wills and Powers of Attorney for Health Care: How They Work
Who Can Make Health Care Documents
You must legally be an adult (18 years old in most states) to make a valid document directing your health care. You must also be of sound mind -- that is, able to understand what the document means, what it contains, and how it works.
When Your Health Care Documents Take Effect
Your health care documents take effect if your doctor determines that you lack the ability -- often called the "capacity" -- to make your own health care decisions. Lacking capacity usually means that:
- you can't understand the nature and consequences of the health care choices that are available to you, and
- you are unable to communicate your own wishes for care, either orally, in writing, or through gestures.
Practically speaking, this means that if you are so ill or injured that you cannot express your health care wishes in any way, your documents will spring immediately into effect. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care agent or close relatives) will decide whether it is time for your health care documents to become operative.
In some states, it is possible to give your health care agent the authority to manage your medical care immediately. If your state allows this option, you may prefer to make an immediately effective document so that your agent can step in to act for you at any time, without the need to involve a doctor in the question of whether or not your health care document should take effect.
Making your document effective immediately will not give your agent the authority to override what you want in terms of treatment; you will always be able to dictate your own medical care if you have the ability to do so. And even when you are no longer capable of making your own decisions, your health care agent must always act in your best interests and diligently try to follow any health care wishes you've expressed in your health care declaration or otherwise.
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