Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 10, 2020

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Health care directives allow a person to make important medical decisions of their behalf should they become incapacitated. They can be an important aspect of estate planning, but how do they really work?

Advice from a California attorney

We asked Vincent J. Russo, a California attorney whose practice consists of estate planning and probate litigation, to provide us with advice on health care directives. Here’s what he told us:

One of the things that I generally do with an estate plan is an advanced health care directive or some form of durable power of attorney for medical care, which gives people an opportunity in advance to state what it is that they want done in the event that they are incapacitated and don’t have the ability to make decisions for themselves.

Terry Schiavo was the big case in this area. In that case, there was a contest between the husband who said that the wife wanted him not to sustain her on any life support and Terry’s mother and father who said that they did want to keep her alive. While some people would not want to be kept alive by artificial means, others might, so I try and give them the legal documents that they will require in order to have their wishes carried out.

Practical applications

Although it would seem that health care directives are fool proof, sometimes they’re not. Russo told us that there is a practical impact in all of this of which everyone should be aware. “Just because you have an advanced health care directive or a durable power of attorney indicating that I have the ability to make medical decisions on your behalf, others may disagree with my decision. Well, if they start threatening the doctor with a lawsuit, the doctor is not going to do what I am instructing him to do without a court order. So, then I would be forced to go to court and have the court issue an order in regards to what type of care, or lack of care, the incapacitated individual would receive.”

Estate planning, which includes wills, trusts, health care directives and probate issues, is a complicated area of the law.