Nearly 80% of Americans die in a hospital or other care facility. Unless the patient has a healthcare directive (living will), doctors who work in these facilities will attempt to preserve the patient’s life through whatever means are available. This may not be what the patient wants. When your client comes in to see you about a will, you should discuss this topic with them. A healthcare directive gives the client the opportunity to write out their wishes in advance if ever they are unable to speak for themselves.

A healthcare directive sets out your client’s wishes about what medical treatment should be withheld or provided if he/she becomes unable to communicate those wishes. The directive is essentially a contract with the attending doctor. Once the doctor receives a properly signed and witnessed directive, he/she has a duty either to honor its instructions or to make sure the patient is transferred to the care of a doctor who will. Many people mistakenly believe that a healthcare directive is used only to instruct the doctor to withhold life prolonging treatments. In fact, some people want to reinforce that they would like to receive all medical treatment that is available, and a healthcare directive is the perfect vehicle for this.

A healthcare directive takes effect when three things happen: the patient is diagnosed to be close to death from a terminal condition or to be permanently comatose; the patient cannot communicate his/her own wishes for his/her medical care orally, in writing or through gestures; and the medical personnel attending the patient are notified of the patient’s written directions for his/her medical care. If the patient does not have a healthcare directive, or a durable power of attorney to appoint someone to make healthcare decisions on his/her behalf, the doctors who attend the patient will use their own discretion in deciding what kind of medical care he/she will receive.

Many people first realize the need for healthcare documents when they’re being admitted to a hospital. This is not the best time for a patient to start making decisions. It is best if you, the attorney, have the opportunity to discuss the options with your client, and complete the documents for the client to have on hand. You should keep a copy of the documents as well. Many clients will put these documents, along with their wills, in their safe deposit boxes, and when it becomes necessary to have the documents, no one has access. Advise your clients to put the living will and the last will and testament in a place that is accessible to a family member or friend.

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