The Importance of Advanced Directives and Power of Attorney in Long-Term Care Planning

Jun 30, 2023 | Estates Planning and Asset Protection

An old saying, “Failing to plan is planning to fail,” succinctly sums up the need for advance directives in long-term care planning.

Many people think they don’t need to create a long-term care plan until they are old or terminally ill, but the reality is that you need a plan when you need a plan, and if you wait too long, you may not be capable of making one. 

Life is unpredictable, and it’s never too early to start the advance care planning process.

What is advance care planning?

Advance care planning helps you understand and share your preferences and goals for your future medical care and the distribution of your estate.

It’s often helpful to think of advance care planning as a process, not an event. You’re not done with your plan once you sign the power of attorney form or fill out a do not resuscitate (DNR) order. At least once every few years, and certainly every time you experience a change in your health, you should review your plan and ensure that it still aligns with your values and wishes.

And remember, having advance directives won’t do much good if no one knows. It’s important to share your plan with family members, friends, doctors, administrators at your hospital or nursing home—anyone who will be closely involved in your medical treatment or health care decisions.

Understanding advance directives for health care

Advance directives for health care are living, legal documents that detail:

  • Which potentially life-saving medical interventions you would like to receive and which you would not
  • Who is authorized to make medical decisions for you if you are incapacitated in some way (your healthcare proxy)
  • Your wishes for organ and tissue donation

Creating advance directives can feel uncomfortable. But any discomfort you may experience thinking about your end-of-life care pales in comparison to the difficulty your loved ones will face if they find themselves in a situation where they have to try and guess what you would have wanted.

Complicating the situation further, if you don’t have advance directives, who can make decisions for you varies by state. It’s not uncommon for families to go to court over who gets to be the decision-maker if the person in care hasn’t already selected one.

In short: advance directives do more than ensure everyone does their best to fulfill your end-of-life wishes. They also remove the burden of uncertainty, stress, and guilt from your medical team, friends, and family.

Types of advance directives

There are multiple kinds of advance directives, but when it comes to health care decisions, the two most common are a durable power of attorney for health care and a living will.

Durable power of attorney for health care

A durable power of attorney for health care designates a proxy to make decisions on your behalf. Also known as a surrogate or agent, this proxy should be someone you trust to understand your prognosis and honor your wishes.

Discuss your plan with your proxy so that they have the confidence they will need to make the hard decisions and handle any disputes related to your care that may arise.

In Texas, a durable power of attorney for health care must be notarized or signed by two witnesses.

Living will

The primary goal of a living will is to explain which emergency treatments you want, which you don’t, and which circumstances could change that formula.

For example, do you want doctors to provide CPR or use a defibrillator to restart your heart? The answer may be yes if you’ve been in an accident but are otherwise healthy. If you have been terminally ill for an extended period, it may be no. 

Other treatments or interventions to consider when creating a living will include the use of a ventilator, pacemaker/ICD, feeding tubes, blood transfusion, dialysis, antibiotic/antiviral medications, receiving/donating organs or tissue, etc.

A living will can be as straightforward or as complex as you want. Your health care power of attorney can be part of your living will, or it can be a separate document, but your living will must still be notarized or signed by two witnesses.

Other forms and orders

You can reinforce the preferences laid out in your living will with other forms and orders, such as:

  • A do not resuscitate order (DNR) tells physicians and nurses you do not want any life-support measures provided if your heart or lungs stop
  • A do not intubate order (DNI): lets your hospital or nursing home know you do not want to be placed on any mechanical ventilation
  • A do not hospitalize order (DNH): prevents your transfer from a long-term care facility to a hospital if you are at the end of your life
  • A physician order for life-sustaining treatment (POLST) gives medical teams immediate access to your preferences in emergencies
  • An out-of-hospital do-not-resuscitate order (OOH–DNR) is a Texas-specific form that tells emergency medical technicians or care facility staff you do not want CPR

There may be other forms that would be beneficial in your specific situation. Talking with your doctor and estate planning attorney is the best way to confirm that you have considered the most important facts related to your case.

Managing your advance care plan

Once you have completed your advance directives as part of your long-term care plan, there are a few things you can do to verify that they have done their job:

  • Keep the originals in a safe place and give copies to the appropriate people on your medical and legal teams, as well as your healthcare proxy
  • Talk to loved ones who do not have power of attorney to ensure they understand what your wishes are and who is authorized to make decisions on your behalf
  • Review and update your plan and directives regularly and inform all parties when you make significant changes

Start your advance care planning with our team

Perhaps the hardest part of making an advance care plan is getting started. But you don’t have to do it alone.

If you have questions about how advance directives work in Texas, contact our experienced team at Shann M. Chaudhry Esq., Attorney at Law PLLC.

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