At some point in our lives, we will become incapacitated, which is defined as the inability to make a decision for one’s self. A person is deemed incapacitated when his/her medical professional determines one is unable to make a decision for himself/herself. Whether this is because of a surgical procedure, accident, or at the end of our lives, at some point we will be unable to make a decision for ourselves and need to rely on our loved ones to make a decision regarding the medical care we receive during incapacitation.
As humans, we do think of the inevitable and some like to take control of the potential of incapacity. We can take control in discussing what we want to have done with our loved ones or with our primary care physician. However, we are still leaving the full decision making to those individuals. The question I usually ask my clients is “How do you know those individuals will carry out your wishes?” The usual response is “I trust them and they will listen.” How do we know when emotions are on the line and a decision has to made the individual is thinking about what you want over what the individual wants?
By not preparing for your incapacity, you are allowing the Uniform Health Care Decisions Act to appoint your surrogate. The order of who would be your surrogate in descending order of priority is 1) the spouse, unless legally separated, 2) an adult child (if multiple, from oldest to youngest), 3) a parent, or 4) an adult brother or sister. My recommendation is to plan for your incapacitation and draft a Living Will and a Medical Proxy Directive. There are differences between these two documents.
An Advanced Medical Directive appoints a surrogate to make the decisions for you during your incapacitated state. You can leave directives such as “not wanting a feeding tube,” but most people leave the decision to the surrogate.
On the other hand, there is a Living Will. This document appoints a surrogate to fulfill the directions that have been left in the Living Will. These directions can be to donate/not donate organs, full life support/no life support, and a no resuscitation order. Basically, the incapacitated individual has already planned for this moment, thought it through and now orders the surrogate to follow through with his/her wishes.
Deciding on whether a Medical Proxy Directive or Living Will is appropriate is a discussion to have with an attorney. Your attorney will be able to aid you in drafting the document and will answer any and all questions regarding each document.
If you are ready to plan for the future and need help in deciding which document is best for you, contact David Campanile at Campanile Law, LLC. During this COVID-19 pandemic it is best to have these documents drafted and executed as no one is immune from getting sick.