No excuses: Get a health care directive

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Terri Schiavo. A young woman’s name could stand for so many things. Instead, Terri is remembered, sadly, not for her life but for the way in which she died, having her feeding tube removed after years spent in a vegetative state.

In past columns I have opined that something good often comes from tragedy and whatever your view of the debate surrounding Terri’s death, it was tragic. The good, in my opinion, that clearly came from Terri’s plight is that it forced people to discuss end-of-life decision-making. Because of Terri, people began talking about the importance of designating another person as their decision-maker and to discuss their end-of-life health care wishes.

In Minnesota, this is done with a health care directive, and the legislature passed legislation in 1998 combining the former “living will” and a durable power of attorney for health care into one document. The statute governing health care directives even provides a statutory form, which clients need not use, but which asks the very difficult questions clients need to answer.

For a document to be a valid health care directive in Minnesota it must:

  1. Be in writing;
  2. Name the principal;
  3. Be signed by the principal;
  4. State that the principal has the capacity to sign the document;
  5. Be notarized or signed by two witnesses in accordance with the statute; and
  6. Name a health care agent, express health care instructions, or both.

A health care directive may also provide for your funeral and organ-donation wishes.

A health care directive may be used any time an individual is incapable of making a health care decision and not just when a terminal condition exists. As such, there is no reason that anyone who reads this column should not have a health care directive.

Some changes have taken place in this area. Readers of Good Age know that you may designate yourself as an organ donor on your state driver’s license. What you might not know is that the Darlene Luther Revised Uniform Anatomical Gifts Act (effective April 1, 2008) updated Minnesota’s laws regarding the donation of organs and body tissues.

In addition to some technical and clarifying changes, the Darlene Luther Revised Uniform Anatomical Gift Act changed one of two Minnesota statutes that determines who has priority to make decisions for individuals that do not have a health care directive. Under the Darlene Luther Revised Uniform Anatomical Gift Act, the priority is as follows:

  1. An agent named under a health care directive;
  2. The spouse of a decedent;
  3. Adult children of the decedent;
  4. Parents of the decedent;
  5. Adult siblings of the decedent;
  6. Adult grandchildren of the decedent;
  7. Grandparents of the decedent;
  8. The persons who were acting as guardians of the person of the decedent at the time of death;
  9. An adult who exhibited special care and concern for the decedent; and
  10. Any other person having lawful authority to dispose of the decedent’s body.

Under the morticians’ statute, the priority is a little different:

  1. An agent named under a health care directive;
  2. The surviving spouse;
  3. Surviving adult children;
  4. The surviving parents of the decedent;
  5. Surviving adult siblings of the decedent;
  6. The person or persons respectively in the next degree of kinship in the order named by law to inherit the estate of the decedent; and
  7. The appropriate public or court authority, as required by law.

How the discrepancy in these two statutes will be resolved is unclear. What is clear is that both statutes give first priority to the person named in a valid health care directive, which serves as yet another reason to have one in place.

The final question I wanted to address in this column is why so many people do not have a health care directive when it makes so much sense to have one. My unscientific analysis is that having these discussions is uncomfortable, and individuals avoid uncomfortable things whenever possible. When people are ready to focus on these concerns, often immediately before travel or after loss of a loved one, they are sometimes still not able to move forward. My advice to readers of this article is to find a way to fit this in. Candidly expressing to your loved ones why you made the decisions you did in your health care directive prior to your incapacitation is extremely valuable. Completing a health care directive requires some time and personal reflection, but it truly is a gift to your family and loved ones.

Lastly, once you complete your health care directive, make sure you get it into your medical file.

Christopher J. Burns is an estate-planning attorney with Henson & Efron, P.A.