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Don't Be In The Dark About Our Legal System

Hello, I'm Karla Mitchell. Going through a legal case can be very expensive and challenging. I won't go into details, but I recently underwent my own legal battle that lasted several years. It is finally over and I successfully received a settlement, but I had to spend so much time studying law in order to play my role in my own court case. While I found a great attorney at one point, I felt completely lost initially and I don't want anyone else to experience the same thing. So I decided to create this blog for those who would like to know more about law.


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Don't Be In The Dark About Our Legal System

The Importance Of Drafting An Advance Directive

by Andrew Martin

If you become seriously ill, are you confident your health and medical-related wishes will be followed? Unless you prepare an advance directive before you become incapacitated, you cannot be sure your doctor and family will abide by your wishes for treatment. In order to draft an advance directive with your lawyer, you first need to understand what it is and how it works.

What is an Advance Directive?

An advance directive is a legally binding document that lays out how you want your health and medical decisions made if you become physically or mentally incapable of making these decisions yourself. There are two common types of advance directives:

  1. Living Will: A living will is a written document with explicit instructions regarding the medical treatments you do want, as well as the ones you don't want, in the event you become unconscious or sick and cannot speak on your own behalf.
  2. Healthcare Proxy: A healthcare proxy, also known as a medical power of attorney, is a legal document that appoints a person you trust to make all of your medical and healthcare-related if you're unable to make them yourself.

Which type of Advance Directive is better?

Neither type is really better than the other because it really depends on your particular situation. However, in some states you can combine both a living will and a healthcare proxy into one document which is the best way to ensure your wishes will be followed. If you live in a state where the two cannot be combined, your best bet might be to draft both individual types of advance directive.

When you compare the two types, a healthcare proxy is a bit more comprehensive because it covers any healthcare decisions that must be made, whether or not you've become unconscious or terminally ill. If you get to a point where you can no longer make healthcare decisions on your own, your healthcare proxy goes into effect. A living will is more limited in most states because it only applies if you become terminally ill or unconscious and mainly addresses life sustaining decisions that must be made. 

Are Advance Directives always followed?

Advance directives are legal in all 50 states, but you cannot necessarily use one state's advance directive in another state. Some states will honor another state's advance directive if the laws are similar in both states, but your safest bet is to prepare advance directives in every state where you spend a significant amount of time. For example, if you're a "snow bird" who spends summers in Florida and winters in Connecticut, you should have advance directives prepared in both states.

Another instance when your advance directive won't be followed is if emergency medical responders are called. Emergency personnel must take measures to stabilize your condition for transfer to the hospital after an accident in the home or elsewhere. Once you reach the hospital and are examined by a doctor, your advance directive can go into effect.

How is an Advance Directive made?

The answer to this question depends on your state because requirements differ from one state to the next. Although it's not always necessary to hire a lawyer to draft your advance directive, it is highly recommended because the requirements for advance directives can be quite complex. Experienced attorneys can guide you through the process and take all of the necessary requirements so its legality isn't challenged down the road.

Without an advance directive, you can't be sure a person you truly trust will be appointed to make your medical and healthcare decisions if you become incapacitated. If you prefer to have a trusted friend or someone other than a close family member step in to make decisions that you can no longer make, an advance directive is critical.