What Happens If You Don't Have Advance Directives in Ohio?
The benefits of having advance directives in Ohio are substantial. They alleviate the emotional burden placed on family members during medical emergencies, prevent disputes among loved ones over what your wishes might have been, and provide clarity to healthcare professionals about your wishes. They also offer peace of mind that your personal values will be honored.
Unfortunately, the absence of these critical documents can leave families making medical decisions without clear guidance. Confusion, conflict, and legal challenges can arise. In some cases, life-prolonging treatment may be administered despite the patient’s unstated preferences. Family members may disagree on the ideal course of action.
The attorneys at DuPont Law Group in Dublin, Ohio, are experienced in estate planning and advance directives, and are ready to assist you.
When a loved one lacks advance directives, our lawyers can help a family understand their legal options, pursue guardianship if necessary, and take appropriate steps to confirm the individual's ideal interests are represented.
Consequences of Not Having Advance Directives in Ohio
Without advance directives, families in Ohio can face a host of legal and emotional complications during an already difficult time. These challenges typically fall into several key areas:
1. Medical Decision-Making Uncertainty
When someone is incapacitated and has no advance directives, Ohio law doesn’t automatically give decision-making power to the next of kin. While healthcare providers may turn to close relatives, the lack of a designated agent can cause confusion. Hospitals and physicians may hesitate to act without clear legal authority, delaying critical care or prolonging suffering.
In Ohio, there’s no statute that automatically assigns a surrogate decision-maker for incapacitated adults. This means that unless a person has appointed someone through a Health Care Power of Attorney, family members may be forced to petition the probate court to be appointed as a guardian before they can make medical decisions.
2. Legal Proceedings for Guardianship
If no advance directives are in place and medical decisions need to be made, family members must often turn to the courts. In Ohio, this involves petitioning the probate court for guardianship over the incapacitated person. Guardianship is a legal process where the court appoints someone to make decisions for the person who is unable to make them independently.
The guardianship process includes filing a petition, providing notice to other family members, undergoing evaluations, and potentially attending hearings. This can be emotionally draining, time-consuming, and expensive. Worse, it can pit family members against each other if they disagree over who should serve as guardian or what medical decisions should be made.
3. Family Conflict and Disagreements
In the absence of clear directives, it’s common for family members to have differing opinions about what medical care their loved one would want. These disagreements can become contentious and lead to fractured relationships. Without documented guidance from the patient, it becomes a matter of interpretation, memory, and assumption.
In particularly heated situations, these disputes can escalate to legal battles, especially if multiple family members seek guardianship or disagree on treatment options. The stress of such conflicts can have lasting effects on family dynamics, sometimes causing permanent rifts.
4. Medical Treatment That May Not Align With the Patient’s Wishes
Ohio law allows healthcare providers to offer life-sustaining treatment in the absence of instructions to the contrary. This means that if a patient is in a terminal condition or permanently unconscious state, and there is no Living Will or healthcare agent to guide decisions, doctors may default to providing aggressive treatment—even if the patient wouldn’t have wanted it.
Examples include being placed on a ventilator, receiving artificial nutrition and hydration, or undergoing painful medical procedures with little chance of recovery. This cannot only prolong suffering for the patient but also place additional emotional and financial burdens on the family.
5. Financial and Emotional Strain on Loved Ones
Prolonged hospital stays, legal fees from guardianship proceedings, and medical costs not covered by insurance can create a significant financial burden for families. Coupled with the emotional toll of uncertainty, fear, and potential guilt, the absence of advance directives can deeply affect the well-being of all involved.
How a Lawyer Can Assist When a Loved One Lacks Advance Directives
When a loved one hasn’t prepared advance directives, an attorney plays a crucial role in helping the family understand Ohio law and healthcare systems. Here are several ways a lawyer can help:
1. Filing for Guardianship in Probate Court
If no Health Care Power of Attorney exists, a lawyer can assist family members in filing for guardianship. They’ll help with paperwork, court representation, and making sure that proper procedures are followed. This legal authority is necessary to make medical decisions and manage the person’s affairs.
A lawyer can also help avoid or resolve conflicts between family members during the guardianship process, potentially mediating disputes and advocating for the interests of the incapacitated individual.
2. Advising on Emergency Medical Authority
In some cases, a healthcare provider may recognize a person as an "informal surrogate," particularly in emergency situations. An attorney can help interpret Ohio laws and advise on whether this designation is valid, as well as assist in going through situations where legal decision-making authority is unclear.
3. Preventing or Managing Family Disputes
Legal counsel can also help mediate disagreements among family members about treatment decisions. By offering an objective understanding of the law and patient rights, a lawyer can work to prevent litigation and help the family reach consensus.
4. Drafting Advance Directives Going Forward
If the loved one recovers their capacity, an attorney can help them immediately create advance directives to avoid future issues. Additionally, a lawyer can assist other family members in getting their own directives in place, recognizing the importance of planning ahead.
Steps to Take Now
There are several proactive steps you can take to protect yourself and your loved ones from the consequences of lacking advance directives.
1. Start the Conversation
The first step is often the hardest—talking to your loved ones about their healthcare preferences. These conversations can be difficult, but they’re essential. Ask questions such as:
What kind of medical treatment would you want if you couldn’t speak for yourself?
Would you want to be kept alive on a machine?
Who would you trust to make decisions on your behalf?
These discussions assure that everyone understands your loved one’s values and priorities.
2. Consult an Attorney to Draft Advance Directives
While there are online forms available, working with a knowledgeable attorney assures that the documents meet Ohio’s legal standards and are tailored to your needs. A lawyer can prepare a comprehensive estate plan that includes:
Health Care Power of Attorney
Living Will Declaration
HIPAA Authorization (for sharing medical information)
Do Not Resuscitate (DNR) Orders, if applicable
An attorney can also provide guidance on where to store these documents and who should have copies.
3. Review and Update Documents Regularly
Advance directives aren’t one-and-done documents. It’s important to review them every few years or after major life changes—such as a new diagnosis, divorce, or death of a named agent. Keeping the documents current confirms they continue to reflect the person’s wishes.
Encourage your loved ones to revisit their directives with their attorney on a routine basis and make updates as needed.
4. Share the Documents With Relevant Parties
Once advance directives are created, make sure that copies are distributed to all relevant individuals. These include:
Primary care physicians
Family members or close friends
The person’s chosen healthcare agent
Local hospital systems (some allow uploads to patient portals)
Having these documents accessible during a crisis assures that medical personnel and decision-makers can act without delay.
Contact Dublin, OH Estate Planning Attorneys Today
Advance directives are legal tools that offer protection and clarity for individuals and their families. In Ohio, the absence of these documents can lead to confusion and medical decisions that may not align with the patient’s true wishes. Our attorneys can help guide families through these challenges, and we can protect your loved one’s dignity and health choices. We serve clients in Dublin, Columbus, Plain City, Marysville, Delaware, Powell, Hilliard and the surrounding areas. Reach out today at 614-389-9711.
Curious about who Advance Directives fit in with an overall estate plan? Read our Consumer's Guide to Estate Planning in Ohio here.