Speak Up for Your Health with a Health Care Directive and Durable Power of Attorney

By Kendel Froese | July 12, 2022

I recently listened to a podcast that discussed the case of Terri Schiavo. I could not help but think during the entire podcast “All of this could have been avoided if she had a health care directive!” I know that some readers of my blog may not remember the ins and outs of the case, but the general summary is that on February 25, 1990, when Ms. Schiavo was only 26 years old, she went into cardiac arrest and suffered massive brain damage due to her brain being deprived of oxygen during the cardiac episode. Ms. Schiavo soon thereafter was diagnosed to be in a persistent vegetative state, and her condition never improved. Ms. Schiavo’s husband asserted that she would not have wanted to live that way, being artificially kept alive by medical intervention. Ms. Schiavo’s parents, on the other hand, disagreed. This disagreement went on for 15 years and included 14 legal appeals, dozens of motions, and even political interventions including from then-President George W. Bush. Eventually in 2005, Ms. Schiavo was allowed to die naturally.

What is a Health Care Directive?

A Health Care Directive, which is sometimes called a Living Will or Advance Directive, is your direction to your loved ones, and notably to your Power of Attorney, whether you want to be kept artificially alive (example, machine-provided nutrition and/or hydration) if you are determined to be in either a terminal condition or a persistent vegetative state (which is referred to a bit more broadly in Washington and called a permanent unconscious condition). A terminal condition, as defined by Washington state law, is “an incurable and irreversible condition caused by injury, disease, or illness that, within reasonable medical judgment, will cause death within a reasonable period of time in accordance with accepted medical standards, and where the application of life-sustaining treatment serves only to prolong the process of dying.” A permanent unconscious condition is defined as “an incurable and irreversible condition in which the patient is medically assessed within reasonable medical judgment as having no reasonable probability of recovery from an irreversible coma or a persistent vegetative state.” The determination that you are in either of these conditions (terminal or permanently unconscious) is made in writing by a physician; generally, only your attending physician is required to provide a determination that you are in a terminal condition, and two physicians are required to determine that you are in a permanent unconscious condition.

What is a Durable Power of Attorney?

A Durable Power of Attorney (“DPOA”) is a document that authorizes the person you have designated as your “Agent” to make decisions for you when you are unable to make them for yourself. Specifically in the context of your health and medical decisions, we are talking about a Durable Power of Attorney for Health Care. Depending on how you want it to be drafted, a DPOA can be effective immediately upon you signing it or can be effective upon something happening in the future (for example, you become incapacitated). My recommendation is for your DPOA to become effective immediately. Otherwise, your Agent will likely need to have a physician determine in writing that you are incapacitated before they can exercise the authority you have given them in the DPOA. The reason I recommend that your DPOA become effective immediately is that when you are incapacitated, chances are there will be immediate issues and decisions that need to be addressed by your Agent. Having to pin down a physician who is comfortable making that determination in writing can cause precious time to be lost and essentially ties your Agent’s hands behind their back until they have that written determination. An important point to make is that even if you make your DPOA effective upon signing, you are not giving up any of your rights to make your own decisions. You are still the boss until you are incapacitated and your Agent needs to step in.

What if I change my mind?

Both a Health Care Directive and a Durable Power of Attorney for Health Care can be revoked (that is, taken back or cancelled). A Health Care Directive can be revoked in writing but can also be revoked by physically destroying the document in any manner by the person who signed it. A DPOA can be revoked by either signing a new DPOA that specifically says the old one is revoked, or by signing a document that says you are revoking the DPOA you previously signed.

A Health Care Directive and Durable Power of Attorney for Health Care are two of the documents Froese Law provides to clients as part of its recommended estate planning package.

Your health is so important. The combination of a Health Care Directive and Durable Power of Attorney for Health Care can protect you if you become incapacitated and can help aid your loved ones in knowing what your wishes are if you are ever determined to be in a terminal or permanently unconscious condition. Here at Froese Law, I know these are not easy conversations to have or decisions to make. I would be honored to discuss these documents with you and provide you a safe and comfortable environment in which to do so.

For more information and to schedule a meeting with me, please contact me.