Like most people, you probably take the ability to make decisions for yourself for. What would happen, however, if you were unable to make decisions for yourself one day because of your own incapacity? Chances are good you would prefer to make as many of those decisions ahead of time as possible to ensure that they are honored. One way to do that is to execute an advance directive. A New Hampshire estate planning attorney at DeBruyckere Law Offices explains why you might want to execute an advance directive.
Are Your Protected If You Become Incapacitated?
When you think about the possibility of your own incapacity, you probably focus on one day developing Alzheimer’s or another age-related condition during your senior years. Although Alzheimer’s disease and other age-related conditions certainly can cause incapacity, the possibility of becoming incapacity is not limited to the elderly. A catastrophic car accident, a debilitating illness, or a serious workplace injury could render you incapacitated tomorrow. In fact, just over one in four of today’s 20-year-olds will become disabled before they retire. Whether incapacity strikes when you are 25 or 85, the questions will apply, including:
- Who would have the legal authority to make health care related decisions for you?
- Does that person know what your wishes would be regarding medical care, specifically end of life treatment?
- How can you ensure that your wishes regarding end of life treatment will be honored?
Executing an advance directive now allows you to provide the answer to these questions in the event you are unable to express your wishes for any reason at a later date.
What Is an Advanced Directive?
An advanced directive is a legal document that allows you to make health care related decisions now in the event you cannot make them for yourself at some point in the future. Each state decides what type of advanced directives will be recognized and what language must be included and/or procedures followed during execution, for an advanced directive to be honored when the time comes. In the New Hampshire, the following advanced directives are recognized:
- New Hampshire Power of Attorney for Healthcare. This advance directive allows you to appoint someone as your Agent to make decisions for you in the event you are unable to make them yourself because of you incapacity at some point in the future. Your Agent will have the authority to consent, refuse to consent, or withdraw consent to medical treatment, and may make decisions about withdrawing or withholding life-sustaining treatment. Your Agent cannot consent to commitment to a state institution, sterilization, or termination of treatment if you are pregnant and if the withdrawal of that treatment is deemed likely to terminate the pregnancy, unless the treatment will be physically harmful to you or prolong severe pain which cannot be alleviated by medication.
- New Hampshire Declaration. This is New Hampshire’s version of a Living Will and is very limited in scope, only allowing you to make a statement that you want life-sustaining treatment withheld or withdrawn if you are near death or permanently unconscious. If you have strong feelings with regard to other types of end of life medical treatment, such as accepting or refusing artificial nutrition or hydration, or the administration of pain medication, you can express those wishes in your Power of Attorney for Healthcare; however, it will be up to your Agent to act on those wishes when making treatment decisions for you.
Contact a New Hampshire Estate Planning Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions about executing an advance directive, contact a New Hampshire estate planning attorney at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
No. Most states specifically exclude the ability to make end of life health care decisions from an Agent’s authority under a general Power of Attorney.
Probably. When a POA is made durable it does mean that the Agent’s authority survives the incapacity of the Principal; however, your Agent may still lack the authority to make critical health care decisions.
Yes. If you specifically authorized or refused a medical treatment in your Living Will, your Agent cannot go against you wishes, even if he/she has authority under a Power of Attorney for Health Care.