Part 3 of our column on health care directives: By expressing your health care preferences in writing now, while you have capacity, you can allow trusted individuals to follow your treatment preferences should you become unable to express your wishes at a later time.

While most of the information available today deals with the importance of end-of-life planning, not all health care decisions involve end-of-life issues. For example, there may be times when an individual is under anesthetic, is unconscious, or has a brain disease such as Alzheimer’s and is unable to communicate. Because none of these conditions involves a terminal condition or a state of permanent unconsciousness, planning for these potentially knotty situations is necessary.

Since a “living will” gives directions to a physician and family only about withholding or providing medical treatment at end of life, a more flexible advance health directive is required to deal with non-end-of-life situations. Enter the health care power of attorney, a form of springing durable power of attorney through which an individual can authorize an agent not only to refuse life-sustaining medical treatment or even direct its withdrawal, but also to deal with other health situations.

A “springing” durable power of attorney means that the document does not become effective until a future event occurs – such as, for example, the inability to make treatment choices due to unconsciousness, late-stage dementia, or other non-terminal conditions that render you incapacitated, either temporarily or permanently.

As the "principal," you would appoint someone else as your agent (or “attorney-in-fact”) to act for you in a particular matter or class of matters should you be unable to do so. Upon your inability to act, the attorney-in-fact is placed “in your shoes” with regard to making all health care decisions. Physicians, hospitals, and other health care providers are bound to honor these decisions as if they were made by the principal himself or herself.

While most state legislatures have passed a statutory form health care power of attorney, we don’t believe that the majority of the forms are sufficiently broad to keep up with the pace of modern medicine. On the other hand, health care providers are less likely to question the validity of a statutory form health power of attorney. While statutory forms are more accessible to people who can sign it without the assistance of an attorney, understanding the content of many statutory forms without explanation is difficult for some folks, especially seniors.

The two most common questions asked about health care powers of attorney are: 1) Who needs a health care power of attorney? 2) Will a health care power of attorney replace a living will?

In our view, the answer to the first question is “everyone,” based upon the myriad of potential health issues facing Americans today. Since the document does not become effective until the person signing it becomes incapacitated, there is no risk of anyone taking advantage of you or making decisions before you are ready. And, if you wish, you can revoke your health care power of attorney at any time prior to your becoming incapacitated.

Question Two is much more complicated. While it’s possible to replace a living will with a health care power of attorney, depending on your situation, it may or may not be advantageous to do so. First, should you intend for your health care power of attorney to be used as a replacement for a living will, depending on your choices, you will be placing difficult and stressful end-of-life decisions on your agent. For this reason, you must make sure your agent is not only willing to make these tough decisions, but is also willing to follow your instructions.

Some folks have both a living will and a health care power of attorney because, in an end-of-life situation, the living will “trumps” the health care power of attorney, leaving your agent with no decision-making authority. On the other hand, if you are incapacitated, your agent can make other health care decisions as necessary.

Taking the NextStep: Contrary to popular belief, Do Not Resuscitate Orders (DNR’s) are neither living wills nor health care directives. Instead, they allow a person with a "terminal" condition to direct there be no emergency services or treatment. And if you have no advance directive, your decision-making will be handled by your children or surviving blood relatives in a priority set by the law of your state of residence.