There comes a point when the staff at your primary care provider will start asking if you have a health care directive. A Health Care Directive is a legal document naming someone, your Health Care Agent, to make medical decisions for you in the event you are unable to communicate your wishes, or you lack the capacity to give informed consent. This document was formerly called a Living Will, Power of Attorney for Medical Decisions, and Advanced Directive, but Health Care Directive is now the common terminology in Minnesota. Preparing and having you execute a Health Care Directive is a part of almost all estate plans with Stellmach Law.

In addition to designating the person(s) to make decisions for you, a Health Care Directive can include some of your end of life wishes such as when to withhold care, if you wish to make anatomical gifts and organ donation, and if you wish for cremation, burial or another disposition of your remains.

When discussing who you should name as your Health Care Agent there are a few parameters to consider. First, the Agent must be at least 18 years old and mentally competent. Second, your Health Care Agent should be someone who knows you well, will follow your expressed wishes, and someone you trust to act in your best interest. Have a discussion with the person you want to name to make sure they are willing to take on the role and that they are comfortable enacting your end of life wishes. Your doctor, nurse, or other medical provider cannot serve as your Health Care Agent unless they are related to you by blood or marriage.

A frequent concern I hear is when can the Health Care Agent take over making medical decisions. Your Health Care Agent can make medical decisions for you when you are unable to communicate your medical wishes or when your physician determines you do not have capacity to make decisions for yourself. Being nominated as your Health Care Agent does not give that person an immediate right to make medical decisions for you when you can communicate and have capacity.