Estate Planning - Advance Medical Directives

Plans For If You Become Incapacitated

Fundamentals of Advance Directives

Advance Directives are legal documents that a person uses to make known his or her wishes regarding life-saving medical care. These documents can set up a plan for your medical care should you no longer be able to make decisions for yourself. They can include a Living Will, Medical Power-of-Attorney, and, if you desire, a Do Not Resuscitate order.

Advance Directives are referred to by different names depending on the state where you reside: advance directive, living will, declaration, power of attorney, patient advocate designation, etc. Some states combine a declaration and a durable power of attorney into a single form, called an "advance health care directive."

An advance directive should be prepared in advance of when it will be needed, so it's advisable for all adults to have one. You must be 18 or older and of sound mind to do so.

Your health care directives take effect if your doctor determines that you lack the capacity to make your own health care decisions. This generally means you cannot understand the nature and consequences of the health care choices that are available to you, and you are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Your health care directives remain effective for the rest of your life, unless you specifically revoke your documents, or if a court orders otherwise (although this eventuality is rare). You may change or revoke your health care directive at any time. If someone disputes the validity of your health care directive, it may be challenged in court.

Although getting divorced has no effect on your health care directive, if you named your spouse as your agent many states will automatically revoke his/her authority. If you have named an alternate agent, that person will assume the role. If you divorce before your health care directive takes effect, it's advisable to create a new document, naming a new agent altogether.

There has been an up swell of interest in advance directives recently. This is largely due to the growing ability of medical technology to prolong life, as well as many highly publicized legal cases involving comatose patients where their family members fight over whether or not to withdraw life sustaining treatment.

Although laws vary from state to state, in general, a patient's written instructions will be honored. In fact, the Patient Self-Determination Act of 1990 requires hospitals to inform their patients about advance directives. Many states now provide their own living will forms with their specific statutory requirements. It is also legally acceptable to draft and sign a standard form or your own written statement of your treatment preferences, provided that you follow your state's witnessing requirements.

If you complete an advance directive in one state, but are ultimately hospitalized in a different state, your wishes will still influence your care. To be on the safe side, however, if you spend a lot of time in more than one state, it is advisable to create an advance directive in each of those states.

If you do not have any type of advance directive, the decision to withdraw treatment will be made by your family, your doctor and the hospital. If an agreement cannot be reached between these parties, a court may have to resolve the conflict. Visit Us at Google+ Copyright

State Links to Advance Directive Forms and Information

Living Wills (Healthcare Directives, Physician's Directives)

A Living Will is not a Will at all. Rather, it is your written instructions specifying your healthcare wishes, should you not be able to speak for yourself. It tells medical providers which treatments you do or do not want if you are incapacitated (i.e. in a coma or vegetative state), and unable to make your own decisions. This can include respiration and ventilation, tube feeding and resuscitation.

A Living Will allows you to ask for all available treatment options and medical techniques, or to choose some medical options and reject others. Living Wills exempt doctors who follow them from civil or criminal liability as long as the care directives comply with reasonable medical standards. The laws do not allow civil or criminal remedies for a physician's refusal to end life-sustaining treatment.

A Living Will does not become effective unless you are incapacitated, which usually requires a certification from your physician and a second physician, which states that you are either suffering from a terminal illness or are permanently unconscious. Therefore, if you are injured and hospitalized but don't have a terminal illness or haven't suffered permanent unconsciousness, your Living Will does not go into effect. For example, you would be resuscitated from a heart attack, even if your Living Will included instructions to not use life prolonging procedures, because the heart attack alone is not sufficient to put your Living Will into effect.

A Living Will should be signed, dated, and witnessed by two people (preferably by individuals who know you well but are not related to you; are not your potential heirs; and are not your health care providers). Many states require a notary or permit a notary instead of two witnesses.

You should discuss and share your Living Will with your doctor, family and, if applicable, clergy. It is also advisable to have your Living Will made a part of your permanent medical record. It is not necessary to have an attorney draft your Living Will, but you may want to discuss it with an attorney and leave a copy with him/her.

Living Will Registries

The U.S. Living Will Registry was founded in 1996. It is a privately held organization that electronically stores advance directives, organ donor information and contact information, and makes them available to hospitals and health care providers across the country through an automated system. The services were originally offered for free, but are now offered on a fee basis. However, many Providers and Partners still offer the service free of charge to their patients, members, clients, employees and the public.

One time registration is good for life. Registrants received a letter every year, allowing them to update their personal and emergency contact information and to confirm that their advance directive has not been changed or revoked.

Many states also provide free advance directive registries for their individual residents.

Medical Powers of Attorney (POAs)/Healthcare Proxies

A medical power of attorney (or healthcare proxy) gives someone else the legal right to make healthcare decisions for you. The person you appoint is usually referred to as your agent or attorney-in-fact. You can give your agent as much or as little authority as you choose, and in most states, you can include the same kind of instructions that you would implement in a Living Will. You can also set up the POA to begin only when specific criteria are met, if you prefer.

Medical POAs are appropriate for situations where you become incapacitated and are not able to speak for yourself, but your health has not reached the point where your Living Will would become effective.

Agents are also referred to as proxies, patient advocates, surrogates, and the like. Choosing your health care agent is arguably one of the most important decisions in planning for your possible incapacitation. It's important that you believe the person you choose has your interests at heart, understands your wishes and will act accordingly.

Most states have specific laws regarding medical powers of attorney. You can draft one without an attorney, but most states do not allow the person you choose as your agent to act as a witness for the document.

Power of Attorney ends at death. You can revoke your power of attorney by notifying your agent in writing of the revocation. It is also prudent to notify your family and physician that the power of attorney has been revoked.

Durable Power of Attorney (DPA)

Normally, an attorney-in-fact can exercise power only if you are capable of exercising the same power. Therefore, the agent would not be able to act when you are incapacitated. A durable POA overcomes this problem. By including specific language, the POA is made durable and your agent will be able to exercise the powers you have granted after you become disabled.

A DPA usually must be signed, notarized and must state that it shall be "durable" (meaning it will continue in effect after you become incapacitated). It terminates upon your death, at a time you specify, or if you cancel it while you are still competent.

A DPA for healthcare decisions generally gives the agent the following powers:
  • The power to offer or deny consent for medical treatments so long as it doesn't disagree with anything in your Living Will
  • The power to decide what medical facilities you should go to;
  • The power to decide which doctors and medical personnel you should see
  • The power to go to court over whether you can receive or be withheld medical treatment;
  • The power to decide how your body will be handled after death, often including organ donation, so long as it doesn't disagree with anything in your Living Will
  • Access to your medical records; and
  • Visitation rights.

Do Not Resuscitate (DNR) Orders

Do Not Resuscitate Orders instruct medical providers not to perform cardiopulmonary resuscitation (CPR) or other procedures to restart your heart or breathing once they have ceased. CPR refers to the medical procedures used to restart a person's heart and breathing when the person has suffered heart failure. This includes mouth-to-mouth resuscitation and external chest compressions, as well as electric shock, injection of medication into the heart, and other advanced CPR methods.

DNR orders are often made to supplement other health care directives, usually by those who are already critically ill. They are designed to comply with the wishes of a seriously or terminally ill patient, seeking to avoid prolonged suffering.

It is not necessary to include a DNR order with your advance directive. Nor is it necessary to have an advance directive to have a DNR order. If you are hospitalized, you can request that a DNR order be added to your medical record.

Some states allow DNR orders only in hospital settings. Other states allow DNR orders to be honored by emergency responders working outside of a hospital setting. If you are not in the hospital, and live in a state that allows it, you can prepare a pre-hospital DNR order to keep nearby in the event that paramedics are called to your home or care facility. It must be signed by a doctor. These are also called pre-hospital medical care directives or comfort care only documents.

DNR orders can be prepared by requesting a form from the doctor, an area hospital, local hospice or ambulance company; by writing down your desire to not be resuscitated; by having an attorney draft a Living Will; or by use of legal document computer software. Laws regarding co-signatures and notarization for DNR orders vary from state to state.

Some people worry that if they implement a DNR order, they will not receive any care at all. This is incorrect. DNR orders only apply to treatments intended to restart your heart or breathing. You will still receive other medical care, such as pain management, antibiotics, dialysis, chemotherapy and other medical treatment that is designed to prolong your life or increase your comfort.

DNR orders can be revoked at any time in any way that effectively communicates your desire. Some States maintain a registry for DNR orders.

Common DNR Order Features

  • Formal documents that providers or responders can readily recognize in charts or on display in the home.
  • DNR bracelets or medallions that the patient wears and providers are trained to recognize.
  • DNR orders are signed by a physician before responders or other providers may honor them.
  • Once in effect, DNR orders include only certain life-preserving procedures, like CPR. Comfort treatment is not withheld and the alleviation of pain is still pursued by providers.
  • Physicians or other providers who are unwilling to carry out the order (for moral or professional reasons) are required to transfer the care of the patient to another provider who will carry out the DNR order.

Find a Lawyer