Minnesota Attorney General's Office
1400 Bremer Tower
445 Minnesota Street
St. Paul, MN 55101
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Probate and Planning
What is a health care directive?
A health care directive is a written document that informs others of your health care wishes. It allows you to name a person (or “agent”) to make decisions for you if you are unable to do so. Under Minnesota law, anyone 18 or older can make a health care directive.
Why might I need a health care directive?
A health care directive is useful if you become unable to adequately communicate your health care wishes. The directive guides your physician, family and friends regarding your care at a time when you are not able to provide that information. While you do not have to create a health care directive (you will still receive medical care without one), a directive will help you get exactly the care you would like, particularly near the end of your life when your interests may not be the same as those who survive you.
How do I prepare a health care directive?
There are forms that you can use to draft a health care directive. The Sample Forms section includes a sample health care directive for your use on pages 31-36. You can also create your own directive or have an attorney prepare one for you, but your directive must:
- Be in writing and dated;
- Contain your name;
- Be signed by you (or someone you authorize to sign for you) when you can still understand and communicate your health care wishes;
- Have your signature verified by a notary public or two witnesses; and
- Include the appointment of an agent to make health care decisions for you and/ or instructions about the health care choices you wish to make.
Before preparing your directive, you may wish to speak with your physician or other health care provider.
What should I include in my health care directive?
Your health care directive may contain many health-related items, including:
- The name of the person you designate as your agent to make health care decisions for you. You can name alternate agents in case the first agent is unavailable, or even assign joint agents;
- Directions to joint agents, if assigned, regarding the process or standards by which they are to reach a health care decision;
- Your goals, values and preferences about health care;
- The types of medical treatment you want or do not want, including instructions about artificial nutrition and hydration; • How you want your agent(s) to make decisions;
- Where you want to receive care;
- Your preferences regarding mental health treatments, including those that are intrusive, use electroshock therapy or require neuroleptic medications;
- Instructions if you are pregnant;
- Your desire to donate organs, tissues or other body parts; and
- Your funeral arrangements. You may be as specific or general as you wish in your health care directive.
What are the limits on my health care directive?
Your health care directive is limited as follows:
- Your agent must be at least 18 years of age;
- Your agent cannot be your health care provider, unless the health care provider is a family member or you give reasons why your agent is your health care provider;
- You cannot request health care treatment that is beyond reasonable medical practice; and
- You cannot request assisted suicide.
Your health care provider must follow your health care directive or your agent’s instructions, as long as your health care requests fall within reasonable medical practice. However, you or your agent cannot request treatment that will be of no help to you, or that cannot practically or ethically be given by your provider. If your provider cannot follow your agent’s directions about life-sustaining treatment, your provider must inform the agent. The provider must also document such a notice in your medical record. The provider must allow the agent to arrange to transfer you to another provider who can and will follow the agent’s directions.
How do I change my health care directive?
Your health care directive lasts until you change or cancel it. If you wish to cancel it, you may do one of the following:
- Write a statement saying you want to cancel it;
- Destroy it;
- Tell at least two people that you wish to cancel it; and/or
- Write a new health care directive.
Bear in mind that Minnesota law allows you to consolidate your living will, durable power of attorney and health care directive into one form for all your health care instructions. The Minnesota Board on Aging has also prepared a useful form for citizens. You may obtain that health care directive form by calling 1-800-333-2433.
How should I plan my funeral?
Under Minnesota law, you may include directions regarding your funeral and burial in your will or in a special document you sign for that purpose. You may appoint a person who has authority to make arrangements after your death. Some things to keep in mind when planning a funeral:
- Your budget and true desires should guide your choice of arrangements. You generally have the option of choosing cremation, burial in a cemetery plot, or burial in a mausoleum; and
- You may wish to involve several members of your family, close friends and/or clergy members when you make funeral arrangements.
Minnesota law and the federal Funeral Rule give you tools to control the cost of funerals. When you request funeral information, these laws require funeral directors to provide detailed, pre-purchase price information, including a “General Price List” of all services offered that lists an effective date. Following the funeral arrangement, a detailed itemization, called the “Statement of Funeral Goods and Services Selected,” must be prepared.
There are many laws in place that protect consumers from deceptive practices by the funeral industry. For example, a funeral provider cannot require that you purchase a casket for cremation. A funeral provider cannot condition the purchase of one funeral service upon the purchase of another funeral good or service. Further, it is against the law for funeral providers to charge a fee for handling, placing or setting a funeral good based upon the fact that the good was not purchased from that funeral provider.
How should I pay for my funeral?
You can make your own funeral arrangements before you die. You may set aside funds to pay for your funeral. One way to do this is to invest the needed amount of money, or put it in a bank account, making sure it will be accessible to family members upon your death. A second option is to prepay for funeral goods and services.
What safeguards exist for consumers who pay in advance?
To help safeguard prepaid funds, Minnesota law requires a funeral director or cemetery operator to place all prepaid funds in a trust account in a bank or other financial institution until the need for your funeral arises, and to advise you of the financial institution’s name and the trust account number. Minnesota law allows you to make arrangements so that you can receive a full refund of all prepaid funds at any time before services are provided.
There are also safeguards in the law to ensure that funds are available for the long-term upkeep of cemeteries and mausoleums. Certain cemetery operators must place in trust 20 percent of funds received from the sale of cemetery lots and 10 percent of funds from the sale of mausoleum space. These “permanent care and improvement” trust accounts are to ensure the future care and maintenance of cemetery grounds and buildings.
Finally, the law requires annual reporting and record keeping for both “pre-need” and the “permanent care and improvement” trust funds:
- Licensed funeral directors must file an annual report disclosing the status of the pre-need trust fund with the State Commissioner of Health;
- Cemetery operators must file an annual report disclosing the status of the permanent care and improvement trust fund with their County Auditor; and
- The Minnesota Department of Health, Mortuary Science Section offers information and takes complaints on funeral goods and services.