If you name an agent in your health care directive, you can also describe the powers you want your agent to have. Below are some powers you might consider granting to your agent.
In Nolo's online health care directives, not all powers of these will be available in every state. The forms we produce are based on each state's statutory form, which may not cover these specific issues. That said, most statutory forms do include an open section that lets you write in additional instructions -- and that is a good place to indicate your preferences about any issues not covered by the form. (If you make your health care directive with Nolo's WillMaker, however, each of these powers will be available in your state unless the state prohibits it.)
It is important to specify whether or not your agent may direct health care providers to withhold or withdraw life-prolonging procedures when you are close to death.
A life-prolonging procedure or treatment is one that would only prolong the process of dying or sustain a condition of permanent unconsciousness. In other words, the patient would die soon—or die without regaining meaningful consciousness—whether or not the treatment was administered.
It is generally agreed that cardiopulmonary resuscitation (CPR), dialysis, artificial respiration, and complicated invasive surgery are life-prolonging procedures when performed on a terminally ill or permanently comatose patient.
In most states, agents automatically have the power to withdraw life-prolonging procedures. In other states, if you wish to grant the power it must be specifically spelled out in your health care document.
To avoid any confusion, it's best to clearly state whether or not your agent has the power to withdraw life-prolonging procedures, knowing that to do so may result in your death. Depending on your state, you may need to sign or initial this specific clause to underscore that you knowingly granted or denied this power to your agent.
Note that giving your agent the power to make this decision is not the same as telling your agent what decision to make. You can also leave specific instructions about whether or not you want to receive life-prolonging procedures—and when. Your agent is legally bound to follow your wishes.
Grant your agent this power if you know that you do not want some or all life-prolonging procedures when you are close to death.
If you are close to death and cannot communicate your wishes for health care, it is also likely that you will not be able to eat or drink normally. The medical solution to this is to provide you with food and water—as a mix of nutrients and fluids—through tubes inserted in a vein or into your stomach, depending on your condition. This is typically called "artificially administered nutrition and hydration," though your state may use a slightly different term.
Even though artificially administered food and water is often considered a life-prolonging procedure, it is wise to state your wishes about this issue separately from other life-prolonging procedures. Many states require you to give explicit instructions about artificially administered food and water. The withdrawal of food and water from terminally ill or permanently unconscious patients has proven to be a bitterly contested personal and political issue. It's best to explicitly state your wishes on this matter so there is no chance of confusion about what you want.
Grant your agent this power if there are any circumstances under which you would not want to receive artificially administered food and water.
You can give your agent the authority to carry out your wishes for organ, tissue, or body donation after your death—or specify that your agent should not have this power.
In almost all cases, it's wise to give your agent the power to assert your wishes about anatomical gifts. If you want to be a donor, giving your agent clear authority to approve your donation will help to expedite the procedure. (Donations must be carried out quickly in order to succeed.) If you don't want to donate, your agent can ensure your wishes are carried out by speaking firmly on your behalf, even in the face of others who may disagree with your choice. And if you're not sure what you want, you can be assured that someone you trust will have the authority to make a decision based on the circumstances when the time comes.
If you give your agent this authority, it's a good idea to use your health care directive to provide instructions about anatomical gifts—or to assert that you do not want to be an organ donor, if that is your wish. Your agent must try to follow any wishes you express.
If you don't grant your agent this authority and the question of whether or not to donate your organs arises after your death, your doctors will ask your next of kin to make the decision.
In some circumstances, such as a sudden or suspicious death, state law may require an autopsy. In these cases, a medical examiner does not need to get permission before proceeding.
In other situations, your loved ones or family members may request an autopsy—for example, if they have questions about the cause of your death or wish to advance society's medical knowledge about a little-understood disease, such as Alzheimer's. You can use your health care directive to give or refuse consent to this type of autopsy, or you can give your agent the power to make the decision for you. Here are some options.
Authorizing an autopsy. Authorizing an autopsy doesn't mean there will be an autopsy; it just allows your loved ones to get more information about your death if they feel they need it. This type of information can provide comfort to grieving family members, but there is a practical reason for it as well: An autopsy may reveal conditions that could be inherited by other members of your family, giving them opportunities for early diagnosis and treatment.
Stating that you don't want an autopsy. You may want to avoid an autopsy for personal or practical reasons. For example, some people have religious concerns about the procedure. If that's true for you, you may want to discuss the issue with a clergy member or other spiritual adviser before making your decision. The most common practical reason for refusing an autopsy is the cost. A complete autopsy can cost several thousand dollars and is usually not covered by insurance. Before you consent to an autopsy, you may want to investigate the costs and be sure your estate has money on hand to cover them.
In rare cases, grants are available to cover the cost of an autopsy. For example, in cases of Alzheimer's or dementia, the National Institutes of Health provides some autopsy services without charge to the family. In order to receive these benefits, however, you must be enrolled in a research program before your death.
Letting your agent decide. When you consider the pros and cons of consenting to an autopsy, you may find that the third option is best. It allows you to leave the matter in your agent's hands. Whether or not an autopsy is helpful or prudent will depend on the circumstances of your death—many of which are unpredictable ahead of time. If you talk to your agent about your general feelings and wishes, he or she can make a decision when the time comes, taking into account all the circumstances.
Unless you specify otherwise, your closest family members will decide whether your body will be buried or cremated. Here are some ways that you can express your wishes about this decision.
Directing your agent to follow existing wishes. In your health care directive, you can instruct your agent to follow arrangements you have previously made--for example, in a letter that states your preferences about burial, cremation, and a funeral or memorial services. In your health care directive, describe the document or the arrangements you've made, so that your agent and others can locate your papers and carry out your wishes when the time comes.
Letting your agent decide. You can also choose to give your agent the power to decide how your body should be handled after you die. You can either leave these matters entirely in the hands of your agent or, better for everyone involved, discuss your wishes with your agent and other loved ones.
Letting family decide. If there is some reason that you do not want to give your agent the authority to make decisions about burial or cremation, you can deny your agent this power. The practical result is that your closest family members will make decisions about your remains, following any wishes that you may have expressed.
In most cases, your health care agent will be able to make all necessary health care and personal decisions for you, perhaps working with a financial agent you've named under a durable power of attorney for finances. However, although it's unlikely, there may come a time when a court must name someone to make personal decisions for you that go beyond the authority granted in your health care documents. If you need a great deal of help, this person, usually called a "guardian of the person" or "conservator of the person," may be granted the power to decide where you live, what you eat, the clothes you wear or what your daily activities will be.
You can use this program to nominate your agent to serve as guardian if it's ever necessary. Doing so strengthens your statement that you want your agent to speak for you in all matters relating to both your health and personal care.
In almost all cases, a court will appoint the person you nominate to be your conservator or guardian. The only time a court will override your nomination is if someone proves to the court that your choice is unlikely to act in your best interests. These types of disputes are very rare.
If your agent is unavailable. If you nominate your agent as your guardian or conservator and your agent is not willing or able to take the job if called on, your document will automatically nominate any alternate agents you have named, in the order designated.
If you don't nominate your agent. If you don't nominate your agent as guardian or conservator and a court must later appoint one, who gets the job depends on where you live. In some states, your health care agent is automatically nominated for the position. In others, priority is given to your spouse—or registered domestic partner in a few states—followed by close relatives in an order established by state law.
Nominating a guardian or conservator of your estate. While a guardian or conservator of your person is responsible for your personal comfort and care, a guardian or conservator of your estate is responsible for your finances. If you make a durable power of finances, you can nominate your financial agent to serve as the guardian or conservator of your estate if that ever becomes necessary. (Again, see Chapter 14 for more information about durable powers of attorney for finances.)