Incapacity Planning – Health Care Directives

A health care directive can help you control the health care you would want and would not want if incapacity due to injury or illness should ever prevent you from communicating your wishes.  It’s a written, legal document which may include any of the following:

  • health care instructions to direct health care providers, others assisting with health care, family members, and a health care agent;
  • a health care power of attorney to appoint a health care agent to make health care decisions for the principal when the principal, in the judgment of the principal’s attending physician, lacks decision-making capacity, unless otherwise specified in the health care directive.

Anyone 18 or older with the mental capacity to do so may create a health care directive.

The definition of “health care”

For purposes of a health care directive, Minnesota law defines “health care” to mean “any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a person’s physical or mental condition,” including:

  • the provision of nutrition or hydration through intubation; and
  • to the extent decisions on these matters relate to the health care needs of the person, deciding where the person should reside and personal security safeguards for the person.

“Health care” does not include any treatment, service, or procedure that violates Minnesota’s law against assisted suicide.

Requirements for a legally valid heath care directive

To be legally sufficient in Minnesota, a health care directive must:

  1. be in writing;
  2. be dated;
  3. state the principal’s name;
  4. be executed by a principal with capacity to do so with the signature of the principal or with the signature of another person authorized by the principal to sign on behalf of the principal;
  5. contain verification of the principal’s signature or the signature of the person authorized by the principal to sign on behalf of the principal, either by a notary public or by witnesses as provided under this chapter; and
  6. include a health care instruction, a health care power of attorney, or both.

However, there are some restrictions on who can act as a health care agent, and who can witness or notarize a health care directive.

“Triggering” a health care directive

A health care directive is effective for a health care decision if the document it legally sufficient (discussed above); and

  • in the determination of the attending physician of the principal, the person lacks decision-making capacity to make the health care decision; or
  • if certain other conditions for effectiveness otherwise specified by the principal have been met.

“Decision-making capacity” as used above means “the ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision.  In most cases, your attending physician will make the call on whether you lack decision-making capacity.  However, a  health care directive may include a statement of the circumstances under which the directive becomes effective other than upon the judgment of the principal’s attending physician for some situations where the principal does not have an attending physician.

A health care directive is not effective for a health care decision if the person’s attending physician determines that you have recovered decision-making capacity.



A “POLST” form should be distinguished from a health care directive.  For relatively healthy individuals, a health care directive is the appropriate tool for letting their family and physicians know their wishes for their health care in the event of possible future incapacity due to illness or injury.  However, if an individual is currently facing serious illness or other condition that could lead to death within a year, a doctor may encourage that person to set up a POLST document.  POLST stands for “physician orders for life-sustaining treatment” – a system originally developed in Oregon to help patients identify their wishes regarding medical treatment and communicate those wishes their care providers through the creation of “standing” medical orders.  If requested by the patient, the patient’s doctor can prepare a POLST form for the patient following a discussion of the patient’s wishes for end-of-life health care.

POLST programs and forms vary from state to state.  For more detailed information on the development and implementation of the system throughout the U.S., and use of the form in Minnesota, we encourage you to visit the Minnesota Medical Association or The National POLST Office.

Set up a Health Care Directive

To set up your Health Care Directive as part of a comprehensive incapacity plan, contact us today.