Enforcing an Advanced Medical Directive

[John Jarndyce]

Jurisdiction

Virginia

I am in the processes for writing a will and I have a question about advanced medical directives. The draft I have received from my attorney says that in the case I am deemed incompetent my agent shall have "full power and authority to make health care decisions on my behalf". But then it says that the agent "shall follow my desires and preferences as stated in this document." My question is how is this "shall" enforced? If, for example, I state that I don't want to be cared for in a care facility, or moved out of my home, or to be visited by aunt Sally, and my agent goes against those wishes, who has standing to stop that from happening? Do medical facilities read all the details in the directive and make sure the patients wishes are being respected? That seems unlikely. One attorney I spoke with indicated that these directives are very difficult to enforce and you just had to trust your agent. Obviously one should only appoint someone you trust as your agent, but I would still like to know what recourse there is the agent does not follow the written wishes in the document. Has anyone dealt with this issue before?

 

[Zigner]

I am in the processes for writing a will and I have a question about advanced medical directives. The draft I have received from my attorney says that in the case I am deemed incompetent my agent shall have "full power and authority to make health care decisions on my behalf". But then it says that the agent "shall follow my desires and preferences as stated in this document." My question is how is this "shall" enforced? If, for example, I state that I don't want to be cared for in a care facility, or moved out of my home, or to be visited by aunt Sally, and my agent goes against those wishes, who has standing to stop that from happening? Do medical facilities read all the details in the directive and make sure the patients wishes are being respected? That seems unlikely. One attorney I spoke with indicated that these directives are very difficult to enforce and you just had to trust your agent. Obviously one should only appoint someone you trust as your agent, but I would still like to know what recourse there is the agent does not follow the written wishes in the document. Has anyone dealt with this issue before?

Your question is very much fact-dependent. For example - are there other people who will also oversee your agent? If yes, will they challenge the actions taken by the agent?

 

[army judge]

If, for example, I state that I don't want to be cared for in a care facility, or moved out of my home, or to be visited by aunt Sally, and my agent goes against those wishes, who has standing to stop that from happening?

No one has such legal standing automatically, if your "chosen one" decides to go rogue.

That is why one must be 1,000,000% sure before granting their "chosen one" such "awesome" power.

My wife is my "chosen one", and I am hers.

I am 1,000,000,000,000% sure that she will do exactly as I request, but even if she goes rogue, I'll probably never know.

Most things are not worthy of worry.

 

[zddoodah]

I have a question about advanced medical directives. The draft I have received from my attorney says that in the case I am deemed incompetent my agent shall have "full power and authority to make health care decisions on my behalf". But then it says that the agent "shall follow my desires and preferences as stated in this document." My question is how is this "shall" enforced?

Why on Earth would pose this question to anonymous strangers on the internet -- most of whom probably aren't in Virginia and some of whom aren't attorneys -- rather than asking your attorney?

One attorney I spoke with indicated that these directives are very difficult to enforce and you just had to trust your agent. Obviously one should only appoint someone you trust as your agent, but I would still like to know what recourse there is the agent does not follow the written wishes in the document.

At the end of the day, if the agent appointed by a POA doesn't follow your instructions and any caregiver follows the agent's instructions over the POA, it will require a competent person to initiate a legal proceeding. Maybe you can execute a secondary POA that takes effect on if the primary POA isn't being followed. You really need to discuss this with the attorney that's drafting your estate planning documents -- especially if you have serious concerns that the person you appoint as your agent might not follow your instructions.