Advance Directives

Advance health care directives are written instructions to your loved ones and others about the type of medical treatment and health care you'd like to receive if you're unable to communicate directly with your health care providers. Because these statements are made before the medical treatment and health care is actually needed, they are often referred to as “advance directives.”

Advance directives include legal documents such as living wills and durable power of attorney for health care.

What is a living will?

A living will is a legal document that states your preferences for medical treatment if you are terminally ill or permanently unconscious and unable to actively take part in making decisions for your own life. The term “terminally ill” generally means that you have an incurable or irreversible medical condition that will result in death within a relatively short period of time. The term “permanently unconscious” generally means that you are in a permanent coma or a persistent vegetative state, which is an irreversible condition in which you are not aware of yourself or your environment and show no response to the environment. In these cases, the living will states that you want to be allowed to die and not be kept alive through life support systems.

Under a living will, you can state whether you want—or don’t want—certain life-sustaining procedures, including artificial respiration, cardiopulmonary resuscitation, and artificial means of providing nutrition and hydration.

Can I decide what treatment I want under a living will?

Yes. That decision is entirely up to you. It’s an important decision, however, so most professionals recommend that you discuss the available options with your loved ones and your professional advisors. Some people don’t feel comfortable making a living will, while many others do.

What is a durable power of attorney for health care?

A “durable power of attorney for health care” is a written legal document in which you name another person as your agent to make health care decisions for you. A “health care proxy” or “agent” is a method of giving another person legal power to make medical decisions when you no longer can.

A durable power of attorney for health care is exactly the same as any other durable power of attorney except that it pertains only to your health care, not financial matters. You can include instructions about the types of medical treatments you want—or don’t want. Following are a few examples of things you can include:

• Your personal goals, values, and preferences
• Types of medical treatment you would want—or don’t want
• How you want your agent to make decisions
• Where you want to receive care
• Instructions about artificial nutrition and hydration
• Mental health treatments
• Organ donations
• Funeral arrangements
• Whom you would like to have as a guardian or conservator of your person if one is to be appointed for you

You can be as general or as specific as you like, because it is your directive to your designated agent.

Can I name more than one agent to act for me?

Yes. You can appoint as many agents as you would like. If you appoint more than one agent, you should specify whether each agent can act separately or whether they all must act collectively. There are advantages and disadvantages to both forms of appointment. Requiring your agents to act collectively can safeguard the soundness of their decisions, but it may be very difficult for all of them to agree on every decision. If any one of them can make decisions for you, that may be much easier to get things done, but it may also cause serious disagreements among them if they are not told in advance. Another option is to appoint only one agent, with another named as an alternate in case the first named agent is unable to act for you.

How do I make these health care instructions?

There are forms available for this purpose. Some states even have specimen forms that are available for no charge. You don’t have to use a form if you don’t want to. You can write out your wishes on a separate piece of paper, or you can get a sample form from the library or from various online sites—without having to pay a fee. Most attorneys provide these forms, as well, and generally are included as part of your overall estate planning at no additional charge.

There are some legal requirements that you must comply with in order to create a legally binding document:

• You must be at least 18 years of age at the time you sign the document.
• The document must be in writing.
• It must state your name.
• It must be signed by you or by someone authorized to sign for you.
• Your signature must be witnessed by 2 witnesses and your signature must be notarized by a notary public.
• It should include the name, address, and relationship to you of each person you designate as your agent for health care decisions and, if you designate more than 1, whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately.
• If you wish to make such a pre-designation of a guardian or conservator for future incapacity, it should include the name, address, and relationship to you of each person you pre-designate as your guardian or conservator. If you designate more than one person, you should indicate whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately.

Where should I store these documents?

You should inform your family members, your attorney, your personal physician, and each person you have designated as either your health care agent or your guardian or conservator for future incapacity. In fact, it's advisable that you discuss these important decisions with these people before you even sign the documents.

You should keep the originals in a safe place, particularly one that is free of any potential water or fire damage. It is also a good idea to give copies of these documents to the people who are most likely to need this information when the time comes, particularly your attorney and your personal physician. In fact, you should give a copy to your physician so that it can be placed in your medical file.

Will these documents be valid in other states?

Yes, these documents are valid in all 50 states as long as they are valid in the state in which they are executed. However, if you move permanently to another state, it’s a good idea to review these documents to insure that they fully comply with that state’s requirements.

Will doctors/hospitals honor my wishes about my health care?

The laws of most states require that medical service providers honor your wishes about your medical care and treatment. Conflicts sometimes occur however, when there is a lack of communication between medical service providers and family members. This is another reason why you should communicate your wishes to your family members, your attorney, and your personal physician, in addition to stating your wishes in the form of health care instructions. In most states, your health care agent has the authority to seek medical service providers who will comply with your wishes.

How long will my advance directives last?

There is no time limit for these documents. They will generally last until you change them or terminate them. You may change them at any time and from time to time by simply signing new documents. It is always a good idea to destroy your old documents so they aren’t confused with your new ones. You may also terminate them at any time by:

• Signing a written statement to that effect.
• Destroying the original and all copies.
• Telling at least 2 people that you are terminating them.

Must a lawyer create my advance directives?

No, a lawyer does not have to create your advance directives. If you have any questions about any of these documents, particularly the people you appoint as your health care agent, it is advisable that you consult with someone who is knowledgeable about such matters. Estate planning attorneys are often well versed in such matters because they have been through it many times with their clients—and, maybe, even their own family members.