When going through a divorce the steps needed to get your financial, legal and medical matters in order can bombard you, leaving you overwhelmed at a time when you are already emotionally strained. The best advice is to manage the looming litany of tasks by writing them down, in order of priority, and deal with each one at a time. Don’t focus on the overwhelming number of things that must be done, but only on what must be done next. After that you can cross each item off the list as it is completed, feeling the satisfaction that comes from knowing you are taking control of your future by being proactive.

One of the prime documents you should revise when you are divorcing your spouse is your medical directives. Once you understand the process it is relatively easy, so don’t feel intimated by the legalese. A medical directive is merely a health care document. There are two types of health care documents. Let’s look at them both.

Two Types of Health Care Documents

There are two documents that allow you to declare your wishes for medical care: a living will and a durable power of attorney for health care. It’s advisable to have both.  In some states, the living will and the power of attorney are combined into a single form – called an Advance Directive. Advance Directives are referred to by different names depending on the state where you live. They may be called: advance directive, living will, declaration, power of attorney, patient advocate designation, etc. These documents are types of health care directives since they contain the details about what  you want done regarding your health care in the event that you become incapacitated (unable to speak for yourself).

  1. Living Wills. A living will is a statement you write which declares the type of care you want, or don’t want, if you become incapable of speaking for yourself. This document is generally called a living will, though it may be named differently depending on which state you live in. A living will is not the same as a conventional will or living trust used to leave property at death. A living will strictly pertains to your health care preferences. You can use your living will to go into as much detail as you wish about the kind of health care you want to receive.
  1. Power of Attorney for Health Care. In this document, you appoint a trusted person to act as your health care agent (this person may also be called a health care proxy, or surrogate). This person will make any necessary health care decisions on your behalf and make sure your wishes are executed according to your specifications.

Who Can Make Health Care Documents?

You must be an adult (18 years old in most states) to make a document directing your health care that will be recognized under the law. You must also be of sound mind – meaning that you are able to understand what the document means, what it contains, and how it works.

When do your Health Care Documents Take Effect?

Your health care documents take effect once a doctor determines that you lack the capacity to make your own health care decisions.

Lacking capacity is usually defined by:

  • The inability to comprehend the nature and consequences of the health care choices that are available to you, and
  • The inability to communicate your own wishes for care (either orally, in writing, or through gestures)

Basically, once you are too injured or too ill to express your health care wishes in any recognizable way, your documents will go into effect. In the case of any ambiguity about your capacity to comprehend and communicate your choices clearly then your doctor will make a decision regarding when your documents will take effect (taking into account input from your health care agent).

Do your Health Care Documents End under any Circumstances?

Your written wishes for health care remain valid for as long as you are alive unless you take action to revoke your documents or in the rare case the court steps in and issues a decree.

Your medical directives are valid until:

  1. You choose to revoke your document. You can revoke your directives at any time for any reason. Just be sure to notify your health care providers and your agent that you are voiding the document.
  1. A court invalidates your document. This is highly uncommon, as the law recognizes your right to dictate your own healthcare. However, under extreme circumstances it may end up in court if someone doubts that you had the mental capacity to prepare a valid health care document and brings their case before a judge. Again, such lawsuits are rare. The burden of proof of your lack of capability falls upon the person who is issuing the challenge to the validity of your document due to your lack of mental capacity.
  1. You get a divorce. While getting a divorce will have no effect on your written directions for health care, if your ex-spouse is named as your health care agent, his or her authority is automatically revoked in many states. If you have an alternate agent listed than that person will take over, otherwise you need to name a new person by updating your document or just starting over with a new health care document.

 Increasing Interest in Advance Directives

There has been a recent rise in interest regarding Advance Directives. This is largely due to the advances in medical technology that are now able to prolong life well past what was once the norm.  The amount of legal cases in the media involving comatose patients with family members battling over whether to stop life sustaining treatment has also added to the awareness of advance directives and to the interest from people who want to avoid such a situation in their future

The Law

Laws vary depending on the state but generally a patient’s written instructions will be upheld in the event there is any ambiguity or challenges. The Patient Self-Determination Act of 1990 requires hospitals to inform their patients about Advance Directives. In many states, hospitals will provide their own living will forms which follow the state’s specific requirements. You may also write and sign your own statement dictating your health care preferences, but it is advised that you adhere to your state’s requirements regarding witnesses. If you do not execute your document according to state law then it is invalid.

If you execute your document in your state of residence and are later hospitalized in a different state, then your wishes will still be upheld. However, it is advisable to draft an advance directive in each state you visit frequently, spend a lot of time in or have a residence in.

In the event you become incapable of directing your own medical care and you do not have an advance directive, the decision on how to proceed with treatment, or withdraw treatment, will be made by your family, your doctor and the hospital. If there is disagreement between those involved, a court may step in to resolve the conflict. In order to avoid your family members guessing over and fighting over what you would have wanted, you can create a medical directive. This avoids your loved ones being placed in a very difficult and potentially damaging position to make decisions on your behalf.

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