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WHILE YOU ARE STILL ALERT AND HAVE MENTAL CAPACITY: Living Wills and Health Care Powers of Attorney

Not many people are aware of or understand the necessity of having legal documents that address the event of incapacity or sudden debilitating illness. It can happen to us at any age, but becomes more likely as we age. We do not like to think about it.

If you do not have these documents in place before the triggering event, the court would have to appoint a guardian after much effort and resources have been used. You might not like the person that is appointed. You have more control if you take care of this now.

A Living Will is a misnomer for the document that directs health care providers about what is acceptable or unacceptable to you when you are terminally ill or in a vegetative state. It has nothing to do with what we commonly call a Will. It is an advanced directive which normally addresses whether you would like the hospital, doctor or nurse to do everything in their power to keep you alive, or whether you wish them to have restrictions on what they can do to you to keep you alive. Do you want to be resuscitated? Do you want to be on life support? Do you want them to feed you through a tube? Do you even want to be taken to the hospital at this point?

Now it seems that everyone would want these things, but you have to think about this in the right context. This is only if you are terminally ill or in a vegetative state, and that is because you will not be able to communicate what you want at this stage. So the Living Will sets forth what you have decided in a moment of clarity, while you are still healthy.

You can change or revoke the Living Will at any time if you change your mind, so long as you still have mental capacity and ability to execute a new one.

In contrast, a Health Care Power of Attorney appoints an agent to make medical decisions on your behalf upon your incapacity. Your Living Will would still apply, giving direction to your agent as well at the health care providers. The Health Care Power of Attorney is triggered by your physical or mental incapacity. The document can specify how that is to be determined. A common way to make the determination of incapacity is with confirmation from two doctors in writing. The term of incapacity may end with another two opinions stating that you are now able to make medical decisions on your own.

The agent for the Health Care Power of Attorney consults with your physicians and makes decisions about where and whether you would be admitted for treatment, and regarding operations, medicine, and other types of treatment. In the event of your death he or she determines whether an autopsy will be performed, whether you will donate organs, what type of funeral arrangements and burial you will have. You can specify in the power of attorney what you would like to have happen or not happen to you, or leave it up to your agent

The Health Care Power of Attorney only applies to physical medical decisions. In Arizona, a separate Mental Health Care Power of Attorney is necessary in the event that you would need treatment for mental problems.

Currently, one in every three seniors die with some form of Alzheimer's or other dementia.

The agent of your Mental Health Care Power of Attorney will be able to receive your medical records, make decisions related to what medications you take, and make decisions regarding whether you should be hospitalized as an inpatient of a psychiatric facility for mental illness.

You should definitely discuss the fact that you are naming your relative or friend as your agent and find out whether they would be willing to take on such a substantial obligation before you name them.

You can revoke or change your power of attorney at any time you still have capacity.

You can register these documents with the Secretary of State at

*This blog is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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