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Should I Get a Health Care Directive/Advance Directive?

For Minnesotans, it’s little effort to ensure important decisions are decided correctly

When considering end-of-life decisions, there’s a common concern that people may be put in a situation where they are unable to make medical decisions for themselves—and that they may prefer different treatment preferences than the providers in charge. To protect against these concerns, people can plan ahead and have a advance care planning framework in place that requires their beliefs and decisions are obeyed when they are unable to express those wishes.

That is the reasoning behind executing a legal document, a health care directive, which allows a “principal” to appoint an “agent” to make decisions or carry out the instructions of the principal. Minnesota law requires health care professionals comply with a validly executed health care directive once the principal lacks decision-making capacity.

What can a health care directive do?

Health care directive forms vary, and there is no one required form. Typically, a form is divided into two sections:

  • Appointment of an agent as a decision-maker

  • Instructions to providers and health care agent

The law requires the form contain one of those sections. It’s unnecessary the form contain both. However, the more fully the form is filled out, the better understood your decisions will be. A health care directive can instruct medical care providers with what to do in certain circumstances, including:

  • Factoring beliefs, goals and values into treatment decisions

  • Decisions for care when permanently unconscious or terminally ill with no chance of recovery

  • Where to receive medical care

  • If given the choice, where to live out final days of life

  • Spiritual or religious beliefs and traditions you want observed

You can draft your own form, or use one of the many free advance directive forms available. It’s not required you have a health care directive to make these decisions; you will still receive medical treatment and health care providers will listen to what family members close to you say about your preferences for care. A health care directive simply provides assurance your health care wishes are followed.

Appointment of an Agent

One agent, joint agents or alternate agents can be appointed. You will want to appoint someone you trust, since they will be who steps in and makes the crucial decisions when you cannot. You can grant an agent the power to:

  • Make any and all health care decisions for you

  • Choose health care providers

  • Choose where you live and receive care

  • Review your medical records and grant authority to share records and medical condition with others

  • Organ donation, tissue donation and choose burial or cremation upon death

Executing a health care directive is easy to do

There are few requirements under the law for a valid health care directive. To be enforceable, the health care directive must:

  • Be in writing and dated

  • State the name of the principal

  • Be signed by the principal (or someone authorized to sign for them) in front of a notary public or two witnesses

  • Appoint an agent or provide instructions about health care decisions

  • Be completed by principal and agent, who are both at least 18 years old

Once completed, the principal should place the original in a safe place, a copy within their medical records, and provide copies to the appointed agents. Principals should also discuss these decisions with their attending physician, loved ones and other care givers. When questions arise, they should reach out to an experienced Minnesota health care or elder law attorney who can help ensure the principal’s wishes are accurately carried out by their healthcare directive.

For more information on this area of law, see our overview of health care law, elder law and estate planning.

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