The law has a lot to say about personal decision-making. For example, people have the legal right to make their own health care decisions. However, poor health can jeopardize people's ability to exercise their legal rights. Safeguarding these rights requires advance thinking and planning. Sudden or chronic illness can cause profound weakness and confusion, which makes people vulnerable and can lead to the unwilling loss of control. Conducting personal affairs, making wishes known, and making sure those wishes are respected may be impossible for people who are physically or mentally impaired. Nevertheless, adults of any age can take steps to protect themselves against losing control over their life, and such steps are especially important for older people.

For health-related personal matters, the key planning tool is a health care advance directive, which includes a living will, a durable power of attorney for health care, or both. For financial and other property matters, the key legal planning tools are a financial power of attorney, a will, and in some cases a revocable trust (or living trust). Together, these legal tools help direct and manage property and healthcare decisions in accordance with a person's wishes when the person no longer has the ability (capacity) to make decisions.

These documents should reflect thoughtful discussion between the person and people close to the person about the person's values, priorities, and preferences during serious illness. The health care documents can be prepared without an attorney. However, an attorney may be helpful, especially if a person's wishes are complex or family members are not likely to be in agreement. Financial and estate planning documents should be completed with the help of a qualified lawyer. The remainder of this chapter focuses solely on health care issues and planning for health decisions.

Some Legal Terms Related to Health Care
Legal capacity (competency): The right and ability to manage one's own affairs (bestowed at age 18 in most states). Legal incapacity (incompetency): The inability to manage one's own affairs because of injury or disability, as determined by a legal proceeding. Clinical incapacity to make health care decisions: The inability to make appropriate decisions regarding health care or to carry them out, as determined by a doctor or other health care practitioner. Advance directives: Documents in the form of either a living will or a durable power of attorney for health care. Living will: A document, sometimes called a directive to doctors, that expresses a person's wishes regarding future medical interventions when the person no longer has the capacity to make health care decisions. Durable power of attorney for health care: A document that legally appoints someone else to make health care decisions on their behalf in the event the person no longer has the capacity to make health care decisions. The person appointed may be called a health care agent or proxy, health care representative, or other name depending on the state.

Last full review/revision December 2012 by Charles Sabatino, JD