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Q:

What is an advance healthcare directive?

A:

In the broadest sense, an advance healthcare directive (more simply, "advance directive") is an instruction, direction, or even a wish relating to your healthcare that you have expressed in advance of a loss of capacity to make or communicate decisions. Every state has laws governing advance directives and laws vary from state to state. There are a growing number of states that have adopted versions of the Uniform Health Care Decisions Act, which is an attempt to achieve some uniformity among the states. An advance directive directs your healthcare provider (physician, dentist, etc.) and authorized decision-makers how you want your healthcare managed, including end-of-life decisions. Through an advance directive you can also select a decision-maker to carry out or to make healthcare decisions for you. In several states advance directives can be oral or in writing but there are usually certain limitations on oral directives. In the broadest sense, advance directives can include powers of attorney for healthcare, do-not-resuscitate orders (DNR) and comfort-care-only do-not-resuscitate orders (CCO-DNR) for out-of-hospital situations. Most people, however, think of an advance directive as a written document containing your directives relating to your healthcare. In this sense an advance directive is a written document in which you provide instructions about medical treatment decisions and other healthcare matters in the event you are not able to make such decisions for yourself. This Web site contains examples of advance directive forms.

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Q:

Is an advance directive the same as a "living will"?

A:

The term "living will" was once a popular term to describe advance directives. The term "living will" has caused confusion in the past with the terms "will" and "living trust" which deal with estates, finances and property issues. In many states, the term has never been used or has been superseded by more modern advance directive laws. The term is not used as often as in the past, but still is sometimes used to describe documents relating to end-of-life decisions. In those states that have superceded older "Living Will" laws, the question often arises whether the older living will documents are "still legal." Living Wills made under previous laws often may impose unnecessary limitations on choices available to you and your healthcare providers and are usually not as clear or enforceable as advance directives executed under newer laws. Depending on when the "living will" form was created, the form may include requirements that you be certified to be in a terminal condition or in an irreversible condition in which you are unable to communicate and that it is unlikely that you will recover this ability. Also, these old forms often did not provide for the designation of an agent to carry out your directions or to make healthcare decisions for you. If you have an old "living will," it may still be legally recognized but you should consider executing a new advance directive which will give you the opportunity to make clear instructions about your healthcare and which will allow you to designate an agent to carry out or make healthcare decisions for you.

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Q:

How do I find out what laws apply in my state and where do I get an advance directive form?

A:

Generally, hospitals and most other healthcare providers can provide you with information on advance directive laws, how to obtain forms and get information and assistance in filling out an advance directive. Many lawyers, doctors, other healthcare professionals, and healthcare and legal services organizations can provide you with information and many have created their own forms based on state law. Most lawyers now prepare advance directives as part of an overall estate plan. The documents may be free or there may be a charge. Most hospitals provide free forms. Assistance in filling out a form may be provided for free or there may be a charge. Some states have required forms that you should use. Other states have sample forms provided in the advance directive law. Unless your state requires a specific form or format, you can use the sample short or long advance directive forms provided on this Web site or on other Web sites linked to it but make sure to check with your attorney or healthcare professional to ensure that it complies with state law. The sample forms included both have a section to place your individual instructions and a section for designation of healthcare agents. Some people like to provide detailed information about choices they would make under a variety of different circumstances depending on their medical conditions. You can add as much as you like and can even include various charts or "decision trees." Other people are intimidated by the length of some of the forms, so several short forms have been created, including the short sample form found on this Web site.

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Q:

How do I execute or revoke an advance directive — do I need witnesses and a notary?

A:

Once again, state laws govern. In some states you need two witnesses who are not related to you by blood, adoption or marriage and a notary. In some states you only need two "qualified" witnesses or a notary. In several states healthcare providers or employees of healthcare providers cannot be witnesses. The advance directive form available through your healthcare institution or through your attorney will most likely have instructions on how to execute it. If not, ask. The advance directive form on this Web site includes easy-to-follow instructions. It can be used if your state does not require a specific form or format. The document contains the date of its execution, must be signed by you and, in order to comply with most state witnessing requirements, is witnessed as follows:

(1) Signed by at least two individuals, each of whom witnessed the signing of the instrument by you and who are not healthcare providers or their employees, and who are not your healthcare agents, and who are not related to you by blood, marriage, or adoption nor entitled to any portion of your estate upon your death under any will or codicil or by operation of law.

(2) Acknowledged before a notary public within the state.
In most states, an individual may revoke all or part of an advance healthcare directive, other than the designation of an agent under a power of attorney for healthcare, at any time and in any manner that communicates an intent to revoke. An individual should revoke the designation of an agent by a signed writing or by personally informing the attending physician or supervising healthcare provider.

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Q:

Is it important to have a healthcare power of attorney even if I already have a will, a power of attorney and a living trust?

A:

Wills, "regular" or financial powers of attorney, and living trusts take care of financial and legal matters, not healthcare matters. Healthcare powers should be specifically mentioned in power of attorney for healthcare, which can be incorporated into your advance directive or into a "regular" power of attorney. For many, the designation of an agent for healthcare matters may be even more important than the individual instructions for healthcare since it is often difficult to predict future health conditions. If you do have somebody you can trust completely with your life, you can designate that person as your agent and he or she will be able to follow your instructions and make any decision about your healthcare that you could. You can limit the power you give your agent or you may grant broad powers. You can even allow the agent to exercise his or her power immediately, which can sometimes be helpful, especially in talking with healthcare providers and having access to your healthcare records. You should remember that you can revoke the powers you give to your agent and you always have the right to make healthcare decisions while you are still mentally capacitated. If you designate an agent it is always a good idea to consider designating an alternate agent in case the person you select is unable or unwilling to act. Of course, the alternate agent should also be somebody you can trust with your life. You should know that in some states, unless related to you by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of the healthcare institution at which you are receiving care.

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Q:

Do I have to make an advance directive — what happens if I do not leave individual instructions or designate an agent under a power of attorney for healthcare?

A:

Nope.

Both federal and state laws are clear -- nobody, not your healthcare provider, not your family, and nobody else can require you to make an advance directive. If you do not make one, however, your healthcare wishes and the identity of the person you would want to make decisions for you will not be known. Some states have "family consent" laws that automatically give precedence to family members to make healthcare decisions for an incapacitated adult. In such states, for example, if a husband is incapable of making healthcare decisions, his wife would have the authority to make decisions for him. If he did not have a spouse, his adult children or parents, if living would have priority to make decisions for him. In other states, there may be no laws governing such "proxies" or "surrogates" and a court-appointed guardian may be necessary. State law may be confusing or may be difficult to follow if you do not select your own decision-maker in advance. In Hawai`i, for example, if an individual is unable to make healthcare decisions, does not have a court appointed guardian and has not designated an agent in a healthcare power of attorney, a "surrogate" may need to be identified to make healthcare decisions. Under the Hawaii Uniform Health Care Decisions Act, there are two types of surrogates: one that is designated by the patient and one who is selected through consensus by all "interested persons" when the patient did not designate anyone. The best course of action, of course, may be to designate an agent in a healthcare power of attorney.

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Q:

Does my doctor have to follow my advance directive or decisions made by my guardian, agent or surrogate?

A:

This is an increasing problem, even in states that have enacted the Uniform Health Care Decisions Act which makes it clear that, with certain exceptions, a healthcare provider or institution providing care to a patient must comply with an individual's advance directive and with healthcare decisions made by persons authorized to make healthcare decisions for the patient. A healthcare provider may usually decline to comply with an individual instruction or healthcare decision for reasons of conscience and, usually, a healthcare institution may decline to comply with an individual instruction or healthcare decision if the instruction or decision is contrary to a policy of the institution which is expressly based on reasons of conscience. Further, a healthcare provider or institution may usually decline to comply with an individual instruction or healthcare decision that requires medically ineffective healthcare or healthcare contrary to generally accepted healthcare standards applicable to the healthcare provider or institution. Talk to your physician and other healthcare providers and give them copies of your advance directive so they will know what to do when you are unable to communicate.

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Q:

In addition to my physician, to whom should I give copies of my completed advance directive?

A:

Make sure your physician and other healthcare providers have copies of your advance directive. Make sure that persons named in the durable power of attorney for healthcare have copies. Also consider giving copies of your advance directive to others you can count on to ensure that your wishes are followed, such as your clergy and family members. Keep a record to whom you give copies in case you should wish to revoke or change your advance directive. It is important to have a conversation with those to whom you give copies to help them understand what you want or don't want in medical care if you are unable to speak for yourself. Perhaps the most important thing for you to do with your advance directive is to ensure that it is placed in your medical file. You may change healthcare providers or your healthcare provider may not be available. If you have more than one healthcare provider, you should ensure that each of your files has a copy of your latest advance directive. If you change or revoke your advance directive make sure that the latest information is contained in each of your files. Periodically check to see if the advance directive is in your file since, as with all records, sometimes records or files get lost or misplaced. For added insurance, consider filing a copy of your advance directive with www.myhealthdirective.com.

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Q:

Will my advance directive be recognized in other states?

A:

Whether an advance directive is recognized in other states ("portability") is becoming an important issue to many people who travel frequently or who reside in two or more states during the year. As previously mentioned, every state has laws governing advance directives and laws vary from state to state. State laws include the criteria for acceptability of advance directive documents. The only real way to know whether your advance directive is "portable" would be to look at the respective state laws. While there are a growing number of states that have adopted versions of the Uniform Health Care Decisions Act in an attempt to achieve some uniformity among the states, most states have not. Some state laws recognize advance directives executed in substantial compliance with their laws regarding the contents and execution of advance directives. As a practical matter, some people execute advance directives in each of the states in which they spend considerable time. Others attempt to create documents which comply with the laws of the various states in which they expect to travel. You can ask your attorney for help in creating such a document. The long form advance directive should be acceptable in most states which do not have a required advance directive form. For military personnel there is some protection. By federal law, all states must recognize the Military Advance Medical Directive, if it is properly executed in accordance with military legal assistance guidelines.

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Q:

How should I start?

A:

Talk with family members, friends, spiritual advisors, physicians and other trusted persons about what would be important to you if you become terminally or irreversibly ill or injured and you can no longer communicate your healthcare decisions or other wishes. Ask someone you trust and whom you can count on to be your healthcare agent and discuss your wishes with this person. Select an alternate healthcare agent in case your agent is unable to serve. Complete either the form required by your state's law or an advance directive form you find that fits your personal needs and complies with state law. Add pages if you like. Have two qualified witnesses, and if required by state law, a notary witness your signature. Inform family members, spouse, parents, children, siblings, friends and physicians that you have executed an advance healthcare directive and that you expect them to honor your instructions. Keep them informed about your current wishes. Give copies of the document to your healthcare agent, healthcare providers, family, close friends, clergy or any other individuals who might be involved in caring for you. Place the document in your medical files. When you renew your driver's license or state I.D., check to see if your state permits a designation on your driver's license that you have made an advance directive. Make plans to review the document on a regular basis — make a new document, if necessary, and keep people informed of any changes. Get started today!

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