Advance care directives are powerful estate planning tools. They let family and medical professionals know your preferences, priorities, and wishes surrounding healthcare when you are incapacitated. When employed correctly, an advance directive can ease stress for your loved ones and ensure you get the care you want. Too often, though, clerical mistakes and misunderstandings end up nullifying this important document. As you make your estate plans, keep these all too common advanced directive mistakes in mind:
One of the most common advance directives mistakes is forgetting to have the person sign their own name on their advance directive paperwork. The only person who is legally allowed to sign a healthcare directive is the principal themselves. No one can sign on their behalf. No matter how sick a person might be, they must write their signature in order to officially designate their advance directives. That is why it’s so important to get family members to fill out such documents while they are still healthy.
In order to prevent coercion or wrongful influence, medical staff are not allowed to witness advance healthcare directive signatures. While it might seem convenient to ask a doctor, nurse, or other healthcare worker to oversee the signing of such documents – especially if you or a loved one has been in the hospital for a lengthy period – it is just not legal for them to do so. Many healthcare workers are not actually aware of this rule and may be personally willing to serve as a witness. Should they do so, though, the documentation becomes immediately null and void.
If you or a loved one are expecting a lengthy stay in the hospital or in a nursing home and need help with your advance directive, seek out your healthcare facility’s long-term care ombudsman to serve as a witness. It is actually their job to provide such services. In fact, not having their signature on your documents can actually nullify your paperwork, so you will want to solicit their help early on in the process.
When you select a person to be in charge of your healthcare decisions, they are known as your healthcare agent. While you might expect them to have the power to sign your advance directive form, it is not allowed. Doing so will void the paperwork, so avoid using them to sign off on this important document.
Advance healthcare directives allow you to assign an agent and an alternate agent to make medical decisions on your behalf should you become incapacitated. Some people opt to list two individuals as their primary agents. This grants them equal decision-making rights when it comes to your healthcare. If they do not agree, problems may arise. Arguments about what decision is right can cause stress between the agents, and if they can not come to an agreement, medical staff will defer to the more conservative option. This may not necessarily be the right medical choice for your best interests. Avoid this unnecessary complication by selecting just one primary individual as your healthcare agent.
Just because you are closest to your oldest son doesn’t mean he is the right person to make your healthcare decisions. If they are unable to follow through with your wishes because of their own personal beliefs, they may not be the best person to select as your healthcare agent. As you choose which person to list as your primary healthcare agent, make sure you are having conversations about your priorities and preferences. If they express any hesitation or disagree with your wishes, you will likely be better off selecting someone else.
While it is not technically required that you list your medical preferences and wishes, it is always worth writing them down just in case. Often this means checking boxes about what you would or would not want. Other times, it means elaborating on your preferences under certain circumstances. These are difficult considerations to make, and many people opt not to talk through their options with family until it is too late. Take a page from my family and talk about everything, even at the kitchen table.
For assistance putting an advance healthcare directive in place or ensuring your existing directive will work according to your wishes, schedule an appointment with our experienced estate planning team by calling (281) 218-0880 or schedule online here.
Kimberly Hegwood is the Managing Attorney of Your Legacy Legal Care, a Houston estate planning law firm. With more than 25 years of experience practicing law in Texas, she represents clients in a wide range of legal matters, including elder law, asset protection, estate planning, Medicaid crisis planning, probate, guardianship, and other estate planning practice areas.
Kimberly received her Juris Doctor from the South Texas College of Law and is a member of the State Bar of Texas.
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