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What if I become incapacitated with no advance directive?

On Behalf of | Jul 7, 2022 | Estate Planning

In Texas, having a comprehensive estate plan that addresses all potential scenarios is important to protect loved ones. People think about the basics like a will, but there are other areas of estate planning to think about. Of course, when property and personal objectives are considered, a trust may be superior to a will.

For health-related considerations, having an advance directive is often understated. It is imperative to know the facts about an advance directive, including what happens and who makes the healthcare decisions if the person does not have one at the time of incapacitation.

How are healthcare decisions made if there is no advance directive?

An advance directive can be crucial to ensure the person is given the treatment they want and does not get the treatment they do not want. Knowing what rights are granted to an agent under the advance directive is important, but it is also useful to know what the law says can happen if the incapacitated person does not have one.

The advance directive can be used to specify which medical treatment the person will receive when they are incapacitated. However, if the person does not have an advance directive, the physician and a legal guardian or an agent through the medical power of attorney can make decisions on their behalf. This includes a range of treatments, including minor procedures to deciding if they should be put on or taken off life support.

If the person did not have an assigned agent through a medical power of attorney, the physician and one individual from the person’s family will decide. It could be the spouse; adult children; parents; or the closest relative.

People can make these decisions based on what they believe the patient’s desire would be, but if they have not specifically stated their desires regarding care, it can be difficult to know exactly what they want.

Without a legal guardian, the decision might be left up to the physician and a different physician who is on the hospital’s ethics or medical committee. This might also spark disputes among loved ones if one does not want the treatment to be given and they file for temporary guardianship.

Professional advice can help with these key decisions

As this demonstrates, problems can arise if a person is incapacitated and did not have an advance directive. For a full grasp of advance directives and other aspects of estate planning, professional guidance can be essential.

Contacting experienced professionals and discussing the situation with them can explain the positives and what can be done to avoid unwelcome circumstances and ensure the person’s wishes are carried out.