As a Probate Attorney located in Summerville, South Carolina, I am often asked about advanced directives and how it will affect them. This is a fundamental document that needs to be executed during your life to ensure that you receive the kind of health care you want if you are ever incapacitated. Having an advance directive is one of the most important things you can do in the event you are no longer able to make medical decisions on your own behalf. No matter how good your doctors are, or how much your family loves you, they cannot read your mind, so it is vital that an advanced directive is in place before your passing. In this article, I will define advanced directives, living wills and the difference between a living will and a health care power of attorney.
What are Advance Health Care Directives in South Carolina?
There are two main types of advance directives: the living will and healthcare power of attorney. States regulate the use of advance directives, and laws vary among the states. Some states permit family members to make all medical decisions for their incapacitated loved ones, while other states require clear evidence of the person’s own wishes or a legally designated decision maker.
In South Carolina, you must fill out two separate forms to have a complete advance directive: A Living Will called “Declaration of Desire For A Natural Death” and a “Health Care Power of Attorney“ Advance directives are the legal documents which allow you to express your wishes about the types of medical treatments you want and give a person of your choosing the ability to make health care and financial decisions on your behalf before a situation arises where you are unable to do so. Advance directives are especially useful in medical emergency situations or near the end of a person’s life.
Choose someone you trust to make health care decisions on your behalf. It is important that your agent acts on your behalf in accordance with your wishes. You should sit down with your agent and spell out, verbally, what you would like done in certain unfortunate circumstances. This way, your agent will hear it directly from you and not be surprised when he or she is asked to make decisions on your behalf.
What is a Living Will in South Carolina?
A living will is a document that states your preferences regarding being kept alive when in a vegetative state or when diagnosed with a terminal illness. The South Carolina living will outline its most critical provisions on the first page. A living will allow you to put in writing your wishes about medical treatments in the event you become ill, disabled, or otherwise unable to communicate your wishes directly.
A living will go into effect once a physician (or more than one physician in some states) certifies that your condition qualifies as a medical condition specified in your state’s living will law and after you are unable to make medical decisions
- If you elect not to have life support or life-saving techniques used for your medical treatment, providing that your condition is terminal or you are in a persistent vegetative state, you may do so.
- The condition must be considered terminal by at least two physicians, one of whom must be your attending physician.
- If there is no way to recover from the condition, then no life-prolonging procedures may be attempted.
- Only medication meant to provide the patient with comfort care can be administered. Patient comfort will be given highest priority in treatment.
To read more about living wills, please refer to my article entitled, “What is a Living Will and Why is it Useful?”.
How Does a Health Care Power of Attorney Differ From a Living Will in South Carolina?
A living will differ from a health care power of attorney in that a living will describe your wishes specifically, whereas a power of attorney for health care allows someone else — your agent — to make your health care decisions for you. Your health care agent must act consistently with your wishes if he or she knows what your wishes are. If not, he or she must act in your best interests. Like a living will, a power of attorney for health care remains valid even if you become incapacitated.
While state regulations vary, the health care power of attorney, otherwise known as a “medical directive,” allows you to name someone to direct your medical care if you become incapacitated. When creating a medical directive, you create what is called a health care declaration, or medical directive. The health care declaration sets out how you should be cared for in an emergency or if you are incapacitated. Specifically, you can direct which treatments you want to receive and which you do not. Life-prolonging treatments such as resuscitation are often addressed in a medical directive, as are directions regarding the quality of life and end of life treatments.
Once you have granted a power of attorney for medical care, the person you nominated to make decisions on your behalf will be able to:
- Make medical decisions on your behalf, if you have not already made specific instructions regarding that decision in your medical directive
- Enforce your health care decisions in court, if necessary
- Hire and fire doctors and medical workers involved in your treatment
- Have access to your medical records
- Have visitation rights
Death is a part of life. Despite the uneasiness this topic can sometimes create, the fact remains that for many people, having an advanced directive and a living will is an immense comfort. An advanced directive not only gives you peace of mind but your family, as well. As a probate attorney in Summerville, South Carolina, I have helped many families navigate through the paperwork and hassle of completing and filing advanced directives and living wills. If you are considering implementing an advanced directive and/or living will or would like to discuss your options, contact the Watts Law Firm today.