Clarifying Terms in Advance Health Care Directives & Health Care POAs Most people recognize the value of planning to ensure that one’s personal religious and moral beliefs are respected in the event of a prolonged state of unconsciousness or other form of mental and/or physical incapacity. While most people can obtain such protection by creating a living will (advance health care directive) and/or health care power of attorney (POA), sometimes the effectiveness of such tools are compromised because the documents are not specific and detailed enough. While every legal adult can benefit from having these two documents along with a Health Portability and Accountability Act of 1996 (HIPAA) authorization, the choice of language and provisions included in these documents can be extremely effective in preserving one’s sense of autonomy and personal dignity.

If you are religious and wish to have specific tenants of your religion observed or you want other considerations to guide extraordinary medical decisions if you are incapacitated, the documents you prepare need to clearly reflect these principles. When people use boilerplate forms obtained from an office supply store or other standard forms, the documents rarely include customization so that the documents are tailored to an individual’s religious and moral beliefs. These documents need to indicate your religious beliefs and/or the degree to which you wish such beliefs to guide an agent making medical decisions under a POA or to assist a health care professional in determining your preferences under an advance health care directive.

There are many scenarios that can become problematic and create conflict between family members when these documents are not sufficiently specific. For example, loved ones with different faiths or divergent levels of observance might fight over the insertion of a tube for nutrition. There may be multiple parties that you want to share responsibility which may create serious disagreements without clear specifics about the spiritual, moral, and medical principles that you wish to determine such decisions.

The language of the documents can be drafted artfully to reduce the risk of offending the views of agents and/or other loved ones based on your preferences regarding health care decisions based on religious tenants or the desire not to have religious tenants guide health care decisions. The party having these documents drafted may indicate that although the party is the member of a particular religious denomination, the party does not wish to have these principles dictate end of life medical care and related decisions. The rationale for these decisions might be expressed within the document with an acknowledgement of respect for an agent’s right to decline to serve in this role. This makes it essential to appoint an alternate agent in case the primary agent decides not to accept his or her role. If the person creating a health care power of attorney discusses these issues in advance with the agent and other loved ones, this also can prevent conflict and misunderstandings later.

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The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case. You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.

If you have questions about estate planning issues in New Mexico, our New Mexico Attorneys at Jay Goodman & Associates, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.


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