The law has a lot to say about personal decision-making. For example, people have the legal right to make their own health care decisions. However, poor health can jeopardize people’s ability to exercise their legal rights.
Safeguarding these rights requires advance thinking and planning. Sudden or chronic illness can cause profound weakness and confusion, which makes people vulnerable and can lead to the unwilling loss of control. Conducting personal affairs, making wishes known, and making sure those wishes are respected may be difficult for people who are physically or mentally impaired. Nevertheless, adults of any age can take steps to protect themselves against losing control over their life, and such steps are especially important for older people.
For health-related personal matters, the key planning tool is a health care advance directive, which includes a living will, a health care power of attorney, or both. For financial and other property matters, the key legal planning tools are a financial power of attorney, a will, and in some cases a revocable trust (or living trust). Together, these legal tools help direct and manage property and health care decisions in accordance with a person’s wishes when the person no longer has the ability (capacity) to make decisions. The remainder of this chapter focuses on health care issues and planning for health decisions.
Health care advance directives should reflect thoughtful discussion between the person and people close to the person about the person’s values, priorities, and preferences during serious illness. The effectiveness of an advance directive is directly proportional to the thoroughness and thoughtfulness of the discussion on which it is based. State laws vary concerning advance directives, but all 50 states permit people to express their wishes regarding end-of-life treatment in the event of a terminal illness or injury and to appoint someone to communicate for them in the event they cannot communicate for themselves.
The health care documents can be prepared without an attorney. However, an attorney may be helpful, especially if a person’s wishes are complex or family members are not likely to be in agreement.