Capell & Howard P.C. Attorneys At Law Montgomery & Auburn/Opelika, AL

Save Your Family Some Difficulty And Strife With Advance Health Care Directives

May 18, 2020

Save Your Family Some Difficulty And Strife With Advance Health Care Directives

By: Debby Spain and Barbara Wells

This one is not easy to write. It is necessary given what is happening in the world at present. It is about very important steps that each of us should be considering taking. Steps that ease the burden on our family members. Steps that decrease the potential for family strife.

No one wants to think about getting sick especially with the vividly painful descriptions of the suffering associated with COVID-19 related disease. Yet, this is a moment in which planning for medical treatment is most prudent. As Seneca said, “Whatever can happen at any time can happen today.”

Under Alabama law, you have the power to make certain advance decisions about your medical treatment in the event you become incapacitated or too sick to speak for yourself.  Alabama has a law that sets out the requirements for a standard form of this living will or advance health care directive. For example, to be enforceable, you must sign it in the presence of two witnesses who are not related to you.  Advance health care directives typical allows you to speak for yourself now about your medical treatment in case you cannot speak for yourself in the future.

For example, you can address whether you wish doctors to use life sustaining treatments such as drugs, machines, or medical procedures that will keep you alive but will not cure you.  You may separately decide whether you want to receive food and water provided through a tube under specific circumstances. You can define the treatment you wish to receive if two doctors must determine that you have a condition that cannot be cured and that you will likely die in the near future from the condition.  Advance health care directives should also address whether you wish to receive life sustaining treatments if you become permanently unconscious.

Your planning should also include the issue of a health care proxy. A health care proxy is a person you designate to make medical decisions for you if you become too sick to speak for yourself. Some people have firm opinions about the advance medical directives described above and do not wish to burden another person with the responsibility of making or altering these decisions.  Others prefer to name a trusted proxy who can make real time decisions based upon the specific circumstances that arise and in consultation with the health care providers.  You may also designate your proxy as your personal representative for purposes of the medical information privacy laws generally referred to as “HIPAA.”  This is particularly important in the event you suffer from a long-term disability such as dementia and want to appoint a proper person who is legally authorized to handle your medical care and to receive information about your condition.

In the absence of this kind of preparation and planning, you leave a situation in which your family must make these decisions for you if you become incapacitated. Even if you believe you have made your wishes about medical treatment and intervention clear, your loved ones may not remember those wishes as clearly as you do without advance health care directives in writing. Additionally, they may not be able to deal with the pressure and guilty associated with making such decisions on your behalf. Finally, disagreement between family members over treatment can permanently damage relationships between family members confronted with such difficult decisions.

For these reasons, the better course is to act now to prepare a living will and a health care proxy. These legal documents can speak for you regarding your wishes when you cannot speak for yourself. Like any legal document, it is important that you seek the assistance of an attorney with experience dealing with the requirements for such advance health care directives under the law of the state of your residence. Questions? Contact Debby Spain or Russ Russell.


This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your particular situation.

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