Two-Thirds Of All Americans Are Missing This Essential Estate Planning Document

Megan Gorman Senior Contributor

Estate planning is a complex world for most Americans. For many, the process can seem overwhelming and expensive. For others, it is uncomfortable to confront one’s mortality and requires tough decision making. But regardless of one’s feeling on estate planning, there is one estate planning document that all Americans should have: A Health Care Directive.

But what exactly is a health care directive? It is a legal document in which an individual specifies their decisions for caregivers in the event of illness or dementia and directs end of life decisions. It can also provide guidance on how the caregivers should handle the body after death.

Health care directives are also known as living wills, durable health care powers of attorney or medical directives. But they all serve the same function:  to provide guidance and direction on how one’s medical and death decisions should be made.

The Impact of Estate Planning

While wills and trusts have been around for centuries, health care directives are a relatively new legal document. They came into existence in 1976 when California passed the first law that permitted health care directives. By 1992, all 50 states had similar laws.

That the law was so quickly accepted across the country is an indication of why these documents are so important in today’s world. A key concept is that of control. Estate planning allows us to have control on certain issue when we are impaired and after our death.

Yet despite how important a health care directive is, a 2017 study found that only a third of all Americans have one, which is surprising since both attorneys and health care professionals advocate for this document.

While we often think of death as a single event, in most cases it is a process. As we work through a directive, it is important to visualize how each step will play out.

Choosing the Right Agent

A key decision in a health care directive is choosing one’s agent. The agent is a proxy who acts on your behalf to make decisions that are consistent with your wishes, so it’s important to pick someone whose values are aligned with yours.  The agent is your advocate on decisions such as whether you want to have treatment continued or just be kept comfortable in palliative care. These are intimate, life changing decisions.  For most married people, the spouse is a likely choice for this role. For the  contingent agent, adult children, other close family members or friends can be ideal.

Once you choose an agent, you should sit down with the person and go through the directive. Hearing you explain your decisions and thoughts will provide guidance for them if and when the need for them to step in arises.

After One Passes

The agent’s role in the health care directive does not end at death, but continues to ensure that our post-mortem wishes are carried out. When the individual passes, the agent takes control of the body. Even before the funeral plans are addressed, the agent has to make sure that any organ donation wishes are carried out. Often this decision is indicated on one’s driver’s license, but it is also restated in the health care directive. If an individual chooses to donate their body, their health care directive can provide important details. In most states, there are four choices for donation: transplant, education, research and therapy, and options for further parameters as well. For instance, if someone wishes to donate only certain body parts, this can be made explicit in a health care directive.

Once donation wishes are carried out, the agent helps to make sure funeral wishes are handled properly. Burial is an ancient ritual. From the preparation and disposal of the body to the accompanying religious rites, it is a time-honored tradition. But never before have we had so much choice in how we want our bodies to be handled after our deaths. In the past, many felt bound by religious tradition, but funeral planning today is much more a reflection of an individual’s values.

These instructions can be listed in the health care directive and can be as simple as burial or cremation. But there is flexibility with how elaborate you wish to be in detailing your funeral plans, including who you want for your eulogy, songs to be played, even the selection of flowers.

Be Proactive

Ultimately a health care directive allows you to control an important part of your legacy. You will have a clear voice in the decision-making process from medical decisions to funeral procedures. It is important to take care of this document done sooner rather than later.

Once this is put in place, despite all apprehension about the estate planning process, you will likely feel you can rest easy having gotten this part of your life in order.