As you age, you may need assistance in managing your affairs or making health care and personal decisions. However, you want to assure as much autonomy for yourself and the least amount of intrusion into your affairs as possible. You can make choices now while you have capacity to do so which will designate the person of your choice to make decisions according to your wishes. Our office can help you develop a comprehensive life plan which takes into account the possibility of incapacity and terminal or long term illness.
Under today’s laws, both state and federal, you have fundamental rights to control your life. These rights include the right to choose who will make decisions for you if you become incapacitated. Advance directives are written instruments that you can use to give others advance instructions or "directives" for the times when you are not able to make your own decisions because of an incapacity.
Good advance planning includes the use of a power of attorney, an appointment of health care representative, and a living will or life prolonging procedures declaration. Although there have been court decisions that recognize the authority of certain classes of family members to speak for you in health care matters when you cannot speak for yourself, advance directives are still necessary to ensure that your wishes will be respected.
Power of Attorney
A power of attorney is a document which you, the principal, can sign giving another person, the attorney in fact agent,the authority to handle your affairs. A relative or other interested person cannot simply "get" a power of attorney over you if you become incapacitated. You can execute the document only if you are at least eighteen years old and mentally capable when signing it. You must sign it in the presence of a notary public.
A power of attorney remains in effect if you subsequently become incapacitated unless the document states otherwise. A power of attorney may be set up to take effect now or to take effect only if you become incapacitated.
Your power of attorney should be drafted carefully to address such issues as Medicaid planning and the authority of your attorney in fact to make gifts on your behalf in the event you require long term health care in the future.
A power of attorney can also grant health care decision making authority to your attorney in fact. However, the health care power of attorney should be done in conjunction with an appointment of health care representative in order to give the attorney in fact/representative full health care decision making powers.
Appointment of Health Care Representative
Unless you have a court-appointed guardian or heal care representative, the Indiana Health Care Consent Act allows the following people to act for you without your written authority:
1. your spouse
2. your parent
3. your adult son or daughter
4. your adult brother or sister
5. your religious superior, if you are a member of a religious order
However, the Health Care Consent Act does not give priority to any one of these categories of people, so if there is disagreement among the individuals who can consent under the law, the medical care provider is often forced to ask the individuals to seek direction from a court.
The Indiana Health Care Consent Law allows you to sign a document designating an individual who is authorized to make health care decisions in the event you become unable to make your own decisions. Virtually all or just a few health-related decisions can be delegated to the health care representative of your choosing.
The document is effective only when:
1. you are, at the time, incapable of consenting to your health care; and
2. the instructions of the health care representative do not overrule your own previous instruction, such as those contained in your living will.
You must sign the appointment in the presence of an adult witness who also must sign. The witness cannot be your appointed representative.
Living Wills & Life Prolonging Procedures Declarations
A living will is a document through which you express your wish to die naturally without the use of extraordinary life support measures if you are terminally ill. A living will is effective only when your attending physician certifies in writing that you have an incurable injury, disease, or illness,and that your death will occur within a short time,and the use of life-prolonging procedures would serve only to lengthen the dying process. The life prolonging procedures declaration is essentially the opposite of the living will, announcing your intentions to use life prolonging measures, no matter how extraordinary the procedure or futile the treatment. These documents are effective only when you are incapable of directing your own medical care.
Preparing Documents to Fit Your Individual Needs
While some forms (such as the living will) are readily available, you should consult an attorney for advice and preparation of these important legal documents. The law is ever-changing, and your documents should be tailored to meet your individual needs.