When preparing your estate plan, it is important to give due consideration to the health care planning aspects involved. While most people focus on making decisions regarding the distribution of their assets after death, planning for incapacity and establishing guidelines for end-of-life care are equally important. These steps can provide much-needed peace of mind for you and your loved ones, and they can help your family members avoid difficult decisions – and potentially avoid disputes related to those decisions as well – by providing clear instructions and making your final wishes known.
In South Carolina, forms for living wills and health care powers of attorney have been established by statute. While it is possible to fill out these forms on your own, due to their complexity and the potential implications of filling them out incorrectly, it is advisable to work with an attorney. As explained by the South Carolina Bar, while it is not required, you are encouraged to consult an attorney for assistance in executing these documents and answering questions specific to your needs.
What is a Living Will?
A living will, also sometimes referred to as an advance directive or a health care directive, provides specific instructions to your doctors regarding life-sustaining treatment and end-of-life care. South Carolina’s living will form addresses a number of specific issues, and it gives you options to choose from regarding specific types of treatment and procedures.
The South Carolina living will begin with the following declaration:
“I willfully and voluntarily make known my desire that no life-sustaining procedures be used to prolong my dying if my condition is terminal or if I am in a state of permanent unconsciousness, and I declare: If at any time I have a condition certified to be a terminal condition by two physicians who have personally examined me, one of whom is my attending physician, and the physicians have determined that my death could occur within a reasonably short period of time without the use of life-sustaining procedures or if the physicians certify that I am in a state of permanent unconsciousness and where the application of life-sustaining procedures would serve only to prolong the dying process, I direct that the procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure necessary to provide me with comfort care.”
This is basically a long and formal way of saying that you do not wish to be placed on life support. If another doctor confirms your attending physician’s determination that treatment would only serve to “prolong the dying process,” then the living will states that only palliative care should be provided.
Next, the living will form provides two options regarding artificial nutrition and hydration (either to be provided or not), and asks for clarification regarding the use of intravenous fluids for palliative care. You will see these options twice: once for the event of being diagnosed with a terminal illness and once for the event that you are in a persistent vegetative state. The living will also provide the option to designate an individual (or individuals) to revoke and enforce it on your behalf, and it provides instructions for revoking your living will in the event that your final wishes change.
Preparing a living will is optional. You do not have to have one; and, if you are uncomfortable with all of the options that the living will provide, then you should use a different planning document instead. For many people, a good alternative to the living will is the health care power of attorney.
What is a Health Care Power of Attorney?
A health care power of attorney can be used either alone or in conjunction with a living will to provide comprehensive guidance regarding medical care in the event of incapacity. Unlike a living will, which provides direct instructions to your doctors, a health care power of attorney designates someone else to make healthcare-related decisions on your behalf. This individual is referred to as your “agent” in the South Carolina form health care power of attorney.
Except with regard to access to health care information, the health care power of attorney is only effective during periods of mental incapacity. If you regain your legal capacity, then your agent will no longer have the authority to make decisions on your behalf. The South Carolina form health care power of attorney grants a number of powers to the agent by default, and then it provides space to specify any powers that should not be granted. Powers granted by default include:
- To consent, refuse, or withdraw consent to any and all types of medical care, treatment, and procedures;
- To authorize or refuse any pain-relieving medication or procedure;
- To authorize admission or discharge from any hospital, nursing home, or another facility; and,
- To take “any other action necessary [for] making, documenting, and assuring implementation of decisions concerning [the principal’s] health care, including, but not limited to, granting any waiver or release from liability required by any hospital, physician, nursing care provider, or other health care provider.”
Other topics addressed in the South Carolina form health care power of attorney include organ donation, life-sustaining treatment options, and use of feeding tubes. The form also provides for the appointment of a primary agent as well as two “alternate agents,” each of whom will serve in succession if your primary (or secondary) selection is unavailable or unwilling to serve in the role.
If you sign a living will and a health care power of attorney, your agent will only be authorized to make decisions under circumstances in which your living will do not apply. Similar to a living will, signing a health care power of attorney is optional, and you can revoke (or modify) your health care power of attorney at any time provided that you have not been deemed legally incapacitated.
Discuss Your Options with Summerville Estate Planning Attorney Patrick R. Watts
If you would like more information about living wills, health care powers of attorney, and the other health care planning options that are available, you can contact Watts Law Firm PA for a confidential initial consultation. To speak with estate planning attorney Patrick R. Watts at our estate planning law offices in Summerville, please call 843-851-7050 or request an appointment online today.