Ethan R. Okura
Hawai‘i Herald Columnist
Everyone should have Advance Healthcare Directives. “Advance Healthcare Directives” are instructions which you are giving now (while you can still make decisions) about how you want doctors and hospitals to take care of you when you can no longer make your own decisions.
Most Advance Healthcare Directive forms have two main parts. The first part is a Power of Attorney for Healthcare. The second part is what used to be called a Living Will.
Power of Attorney for Healthcare
A Power of Attorney for Healthcare is different from an ordinary Power of Attorney (sometimes called “Durable,” “Financial,” and/or “General” Power of Attorney). In an ordinary Power of Attorney, you give someone the power to sign legal papers for you, and to handle your money and property.
In a Power of Attorney for Healthcare, you give someone the power to make medical and other healthcare decisions for you. This person is called your “agent.” It is wise to name alternate agents. For example, if you are married, your spouse could be your agent. One of your children could be your “alternate agent” in case your spouse dies or becomes incapacitated. If you don’t have a spouse or children, brothers or sisters or friends could be your agent and alternate agents. It is possible to name more than one agent to serve together at the same time as “co-agents.” If you name two or more agents as co-agents, it is very important to specify whether any one of them can make decisions for you alone, or whether they have to make decisions by majority vote. If there is any possibility that two or more agents could disagree on their decisions, then it is best to have only one initial agent, with alternate agents listed one at a time.
In your Power of Attorney for Healthcare, you get to choose whether your agent can start making decisions for you immediately, or only after you become incapacitated. If you have complete trust in your agent, my opinion is that you should let the agent have the power to make decisions for you immediately. If the Power of Attorney for Healthcare says that the agent can make decisions only after the person is incapacitated, then, in order to make decisions for the person, the agent will have to prove that the person is incapacitated. This is done by having a physician examine the person and then sign a certificate stating that the person is incapacitated. It may take time to make arrangements for a physician to sign the certification of incapacity. In the meanwhile, the agent will not be able to make medical decisions for the person. Therefore, if you totally trust your agent, the safest thing to do is to say in your Healthcare Power of Attorney that your agent can make decisions for you immediately, even if you are still healthy. You can always override your agent’s decisions while you are mentally competent.
The Living Will
The other main part of the Advance Healthcare Directive is the Living Will. The Living Will is different from a Living Trust. A Living Trust is used to avoid probate. In the Living Will, you make a choice about how you want to be treated if you are in a coma or otherwise unable to communicate, and if there is no reasonable chance for recovery. These are your choices:
You want them to “pull the plugs” and let you die naturally;
You want them to keep you alive as long as possible;
You want your agent to decide whether or not they should “pull the plugs.”
You also get to decide whether you want tube feeding of water and nutrition or whether you want tube feeding to be removed if there is no reasonable hope for recovery.
The Advance Healthcare Directive Law in Hawai‘i changed way back in July 1999. If you have a Living Will or Power of Attorney for Healthcare made before July 1999, it is still legal as long as it was legal at the time it was made. However, if your Advance Healthcare Directive is not in the form approved by the Legislature in the 1999 law, you may want to update your document. The new form is more complete.
You can get an Advance Health Care Directive form at no cost at most hospitals, but I recommend getting one through an estate planning attorney, because I have seen many filled out incorrectly.
© OKURA & ASSOCIATES, 2020
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Ethan R. Okura received his JD from Columbia University in 2002. He specializes in Estate Planning to protect assets from nursing-home costs, probate, estate taxes, and creditors.
This column is for general information only and is not tax or legal advice. The facts of your case may change the advice given. Do not rely on the information in this column without consulting an estate-planning specialist.