For many years, Living Wills were an excellent means by which a person could designate someone to make end-of-life decisions for them if they were unable to make those decisions themselves.  Living Wills gained tremendous popularity several years ago, in response to a number of highly-publicized cases involving people who were in a "persistent vegetative state" due to a motor vehicle accident or by some other means.  For people who did not want to be kept alive by artificial means when they had no reasonable hope of recovery or quality of life, a Living Will gave someone such as a spouse or child the legal authority to refuse or discontinue such treatment.  It was seen as a tremendous breakthrough in patient rights to allow someone to designate an alternate decision maker in situations such as these.

Over time, however, it became clear that there was a significant limitation with Living Wills.  Specifically, by definition, Living Wills apply only when a person is incapacitated (i.e. unable to make or communicate their wishes) AND in a terminal condition.  In other words, Living Wills were intended to give authority over end-of-life decisions only.  With longer life spans and advances in medical technology, however, we routinely encounter individuals who are incapacitated but not terminal.  For example, patients with Alzheimer's disease, Parkinson's disease, or a host of other conditions, may be incapacitated in that they are unable to make or communicate medical decisions for themselves, but they are physically healthy and certainly not terminal.  While these people clearly need someone to make medical decisions for them, a Living Will is ineffective because the person does not meet the "terminal condition" requirement.

The solution for many years was to supplement the Living Will with another document, sometimes called a Health Care Power of Attorney or something similar.  This document was designed to appoint someone to make medical decisions for someone when they were incapacitated but not terminal.  While this "dual-document" system was effective in the sense that it covered people in all situations, being forced to execute and possess two separate documents was confusing, expensive, and inefficient.

In response to this problem, on August 1, 1998, the Minnesota legislature passed a law stating that Living Wills could no longer be created after that date.  (Any Living Wills already in existence on August 1, 1998 are still valid, but continue to carry the "terminal condition" requirement that is so problematic.)  This new law gave rise to the "Health Care Directive," which for the past decade has been the document to use.

A properly-drafted Health Care Directive authorizes someone (the "Health Care Agent") to make medical decisions for an incapacitated person (the "Principal") whenever the need arises, whether the Principal is in a terminal condition or not, and whether the incapacity is short-term, long-term, or permanent.  The document allows the Principal to express their wishes for treatment in writing, or can simply authorize their Health Care Agent to make whatever decision they think is appropriate and consistent with the Principal's wishes.  The document can also set forth the Principal's wishes about organ donation, burial or cremation, and funeral arrangements.

Health Care Directives are widely available, and versions can be found in most hospitals and clinics, online, or with your estate planning attorney.  There is no requirement that an attorney prepare your Health Care Directive, but as with most legal documents, there are requirements for the proper signing, or "execution" of the documents and you must be careful to ensure that they are properly executed in order for them to be valid.  Any questions on these documents should be brought to an attorney.