Atlas Estate Plan Blog

A healthcare power of attorney is basically a power of attorney that assigns an individual the authority to make medical decisions for you if you’re incapacitated. For example, if someone needs to decide: do we amputate? Do we perform this procedure? It's risky, but if we don't do it, they die. 

In addition to the healthcare power of attorney, Minnesota uses something called a “healthcare directive.” A healthcare directive is a form that is a mixture between a healthcare power of attorney and a living will – Minnesota doesn't recognize a living will they haven't done so for over 20 years.

A living will is a form that specifies end of life decisions. Minnesota does not use the terminology “living will” nor do they recognize it, except if it was executed before 1997. The healthcare directive, that MN uses, is a combination between the living will – the end of life decisions statement – and a healthcare power of attorney – which assigns these decisions to a healthcare agent. 

A health care directive is a five page form and it has a lot of questions with blanks for the client to fill out to state what their preferences are for medical care in certain situations. For example, should there be intubation, do not resuscitate, CPR, amputation if needed, hydration, pain care. So it has all sorts of questions that the client can answer to say what their preferences are. And it is good for that purpose. 

But there is a big drawback to the healthcare directive. Most people don’t know what to put in those blanks. They don't know what to what to say. And so you could find proposed language to put in those blanks. But without context, you don’t really know how you would want to answer the question. 

For example, there is a question if you would want to remain pain free. Everyone wants to remain pain free. Well, what if your pain was so intense that in order to keep you pain free, they'd had to inject you with enough drugs that you were barely conscious in your final days. Wouldn’t you want to be able to speak with your loved ones, even if it meant you had to deal with some pain? 

With the healthcare power of attorney, there are some basic questions for the client to answer. Such as, it's my preference to stay in my home instead of going to a nursing home or institutionalized care as long as it's reasonable, attendance in my home, but don't put me in a third party facility.

The advantage with the healthcare power of attorney it grants authority to a designated agent, but it doesn't tell the agent what to do. The agent would use their best judgment. The idea being that because you really don't know what decisions you might want to make because these things are so context specific and there's so much gray area that usually makes sense to do the healthcare power of attorney: so that the designated agent that you trust can make those decisions for you. And when the time comes for them to make that decision for you, they will have all that information they need. Rather than the decision coming from a document you may have filled out - and maybe not spent all that much time on - a number of years ago. If you were conscious and had all the information, you might make a different decision than what you wrote down years ago. That said, if you really know what kind of care you want, if you're unconscious, then you can still fill out the health care directive.

Minnesotans have two options in this regard and the experienced estate planning lawyer at Atlas Law Firm offers clients council and it doesn't cost them anything to decide which path they want to go. Additionally, Atlas Law Firm offers something that many other estate planning attorneys do not offer. If a client has a previously drafted health care directive and wants a health care power of attorney. We will draft the health care power of attorney and wrap the existing health care directive into the health care power of attorney for no extra charge. We can draft the health care power of attorney to state that in the event there is a conflict between the healthcare directive and the healthcare power of attorney. The health care power of attorney shall control. So you have one dominant document. So clients of Atlas Law Firm can get the best of both worlds. 

If you would like to learn more about how a health care directive or power of attorney can benefit you and your family, please contact Atlas Law Firm by calling the number above or scheduling a consult online to speak with an experienced estate planning attorney.