If you recognize the need to include incapacity planning in your overall estate plan you are ahead of the vast majority of people. Though people often fail to think about it, the reality is that incapacity can strike anyone at any time. Whether you suffer a temporary or permanent period of incapacity, someone will have to make healthcare decisions for you during the time you are unable to make them for yourself. Another estate planning mistake people frequently make is to execute a generic power of attorney under the impression that doing so will have the Agent under the power of attorney the authority to make medical decisions for the Principal during a period of incapacity. Unfortunately, it is not quite that simple. North Dakota does recognize Advanced Directives, including the right to appoint an Agent to make healthcare decisions for you; however, you need to execute the correct type of Advanced Directive in order to achieve the goal of giving someone that authority.
When Is Someone Needed to Make Healthcare Decisions for You?
If you are over the age of 18, and of sound mind, your healthcare decisions are yours, and yours alone, to make. If, however, you are unable to make your own healthcare decisions, because of physical and/or mental incapacity, someone else must make them for you. A simple example is if you are in a coma or unconscious and unable to express your wishes or make critical healthcare related decisions, someone must step in and make them on your behalf.
Won’t a Regular Power of Attorney Suffice?
The simple answer is “No.” First, a traditional power of attorney automatically terminates on the death or incapacity of the Principal. That means that even if you executed a power of attorney that gave an Agent the authority to make healthcare decisions on your behalf, that power would terminate exactly when you want it to work – when you become incapacitated. With this in mind, the concept of a “durable” power of attorney evolved. A “durable” power of attorney is one that survives the incapacity of the Principal. Executing a generic durable power of attorney, however, is still insufficient to give someone the authority to make healthcare decisions for you because the North Dakota laws relating to Advanced Directives require you to execute a special type of power of attorney if you wish to give someone the legal authority to make healthcare decisions for you.
North Dakota Power of Attorney for Health Care
The State of North Dakota recognizes what is known as the “North Dakota Health Care Directive, a comprehensive Advanced Directive. The Health Care Directive has several parts, including a Power of Attorney for Health Care section. In that section you have the option to appoint an Agent, as well as one or more successor Agents, who will have the legal authority to make healthcare related decisions for you should you be unable to make them for yourself at some point in the future. Your Agent will have the authority to make all healthcare treatment decisions for you, including decisions relating to life-sustaining treatment. Your Agent cannot, however, make a decision that is contrary to your own expressed wishes as stated elsewhere in the Health Care Directive. For example, if you specifically state that you do not wish to be kept alive using life sustaining equipment, your Agent cannot order the doctors to keep you on the machines. Your Agent also cannot make decisions for you if you are able to make them yourself. Your Agent’s authority only activates when your doctor determines that you are unable to make or communicate your health care decisions. Your Agent will remain your Agent until such time as you revoke the Health Care Directive.
Along with appointing an Agent, your North Dakota Health Care Directive also allows you to execute a “living Will” by including a section that lets you state your wishes about medical care in the event that you can no longer make your own medical decisions. You also have the option to become an organ donor.
If you have additional questions about executing a North Dakota Health Care Directive, contact the experienced estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.
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