What is a Personal Directive?
A Personal Directive is a document that takes effect while a person is alive and provides direction on how to deal with certain matters. Normally matters relating to health care.
How Does a Personal Directive Take Effect?
The document takes effect upon mental incapacity. It does not take effect when you sign the document, rather it springs into effect when you can no longer make decisions relating to your health, by reason of incapacity. When this occurs, the person you have chosen as your agent makes healthcare decisions for you. Often two doctors will declare you lack the capacity to make decisions relating to your health. Two doctors is the normal procedure, because one doctor may be of the opinion that a person lacks capacity, but the second doctor verifies that. When a personal directive takes effect, a person loses a lot of rights. We want to be sure that the Personal Directive should be taking effect.
The Agent
Choosing the right person to make these decisions is important. You want someone who will advocate for your health on your behalf. Many individuals may choose a spouse to take on the role. However, if they are injured as well, then who is an alternate individual with the authority to make decisions? This type of information would be outlined in a Personal Directive. It is also possible to have more than one person acting as an Agent at any one time, which is slightly different as having an alternate.
Where more than one Agent is appointed, they can be given decision making authority “jointly and severally” meaning they do not have to make every decision together. However, if one person is more authoritative or bossy, then the Agents may be appointed this power jointly. This forces them to work together. If the Agents cannot agree on a particular decision, there is usually an Arbitration clause.
What Type of Information Goes into a Personal Directive?
A Personal speaks for you and can be very detailed. You can direct how long you want to stay on life support, and what type of medical interventions you do not want, such as whether you want blood transfusions. You can also direct if you want to donate your organs or specify which organs you wish to donate. Maybe someone wishes to donate all of their organs, except for their eyes. You may specify whether you wish to have your body used for medical research, Again, you can specify which parts of your body you want used, if any.
Further, if you have children, you can direct who is to be their guardian while you lack capacity. You cannot take care of your children, and a Personal Directive will outline the person who will take over this role.
If you have any questions regarding a Personal Directive, contact one of the Estate Lawyers at Kantor LLP.
