ADVANCE DIRECTIVES: WHAT ARE THEY AND DO I REALLY NEED THEM?

by Dawn E. Butler September, 2011

Thinking about the possibility of illness, incapacity and death is not pleasant, and talking with your loved ones about these topics can sometimes be difficult. Most people think of incapacity and illness as something that is faced only in the later years of life. However, the risk of encountering disability, through illness or an accident, can of course occur at any age. Although these topics are not easy to discuss, it is important to evaluate your desires both about health care options and your choices regarding health care decision-makers in the event of disability. After that evaluation, it is then advisable that you put your preferences and choices in writing.

Indiana law provides you with the ability to put your desires regarding future healthcare in writing through documents referred to as "advance directives." There are several different types of documents that can be used as advance directives. Used collectively, these documents outline what your wishes are regarding your future health care and contain your appointment of the person(s) you want making those decisions for you in the event you are unable to make them for yourself.

One of the most common advance directives is the "Appointment of a Health Care Representative." Under Indiana law, any member of your immediate family (this includes spouse, parent, adult child, or sibling) can make a health care decision for you in the event that you are unable to do so. If no one within that category is available, the assistance of a court can be sought to appoint someone to make those decisions in the capacity of guardian. But with the Appointment of a Health Care Representative, you can choose anyone you wish to make your health care decisions for you - whether a family member, friend, or other trusted individual. Indiana law requires Health Care Representatives to make health care decisions that are in the best interests of the person that made the appointment, and those decisions must be followed by your team of health care providers.

Another common advance directive is the "Living Will." With a Living Will you can specify that, in the event your physician certifies in writing that you are suffering from a terminal condition and that life prolonging procedures (life support) will only artificially delay your dying process, that you do not wish for those procedures to be used. In a Living Will you be specific regarding your preferences as to cardiopulmonary resuscitation (CPR), artificial nutrition and/or hydration, use of a respirator, blood transfusions, and organ donation. If your wish is that life prolonging procedures be used as long as possible to lengthen your life even if doing so would artificially delay your dying process, you should use the "Life Prolonging Procedures Declaration."

If you do not make use of advance directives and then become disabled to the degree that you can no longer make your own health care decisions, the only option available for a family member or friend to obtain the legal authority to make those decisions for you will be to file a petition with a court to become your guardian. The process of obtaining a guardianship is far more expensive than the process of implementing advance directives. Additionally, you will have left yourself to the whim of whomever decides to petition to become your guardian and the court may in fact appoint someone as guardian that would not necessarily have been your first choice.

Consulting an attorney about how best to put your advance directives into writing is important to ensure that your wishes are clearly and unambiguously stated, and that the documents are in compliance with Indiana law. Laws regarding advance directives can vary from state to state. Completing the process of implementing advance directives will provide you with peace of mind. Through implementing a comprehensive set of advance directives, you make the legal choices available to you regarding your future healthcare instead of leaving it up to your family members, health care providers, or even a judge to decide what is in your best interests without the benefit of your input.