These legal documents ensure that your loved one’s health-care wishes will be carried out even if he or she becomes incapacitated.
Just as it is important to make sure your loved one has a will, it is wise to discuss certain end-of-life or urgent health care decisions while everyone is still healthy and thinking clearly. By putting documentation known as “advance directives” in place, you can ensure that your loved one’s wishes will be carried out even if he or she becomes unable to make decisions on his or her own. The two most common advance directives are the durable power of attorney for health care and the living will. Together, they are called combined directives.
Durable Power Of Attorney For Health Care
A durable power of attorney for health care is a signed, dated, and witnessed legal document commonly called a “health care proxy” or “health care power of attorney.” This document differs from other durable powers of attorney in that it is specifically limited to health care and medically related decisions.
This document keeps your loved one in charge of his or her destiny. He or she appoints an individual—known as an “agent,” or “proxy”—to make medical decisions in his or her behalf, if, and only if, your loved one becomes incapacitated and cannot make decisions for him or herself. The agent can be any competent adult—a family member, friend, or another person. Should your loved one ever become incapacitated due to illness or injury, the appointed agent will take over medical affairs and act within the guidelines and restrictions that your loved one has established.
A Durable Power Of Attorney For Health Care Should:
- Adhere to the rules of the state in which it is created
- Include a backup if the original agent is not available
- Spell out clearly what matters the agent can and cannot handle
Principal And Agent
For caregivers, the “principal” will be your loved one, and you will be his or her “agent.” Prior to signing a durable power of attorney for health care, the principal and agent must designate under what conditions the document becomes effective. As the agent, you would then be responsible for all medical matters until the principal’s recovery or death. When your loved one signs a durable power of attorney for health care, make sure he or she communicates all wishes, values, and preferences to his or her agent. A lawyer can help your loved one understand how to tailor the durable power of attorney for health care to fit his or her wishes.
A living will (also known as a “treatment directive”) states how health care should proceed when your loved one is no longer capable of making decisions about medical treatment. The document specifies well in advance whether or not your loved one wants to have his or her life prolonged through artificial methods. Many states allow living wills to be written only in cases of terminal illness.
Living wills are usually designed to specifically address situations of terminal illness. Because it is difficult to predict all possible medical circumstances that may arise, a living will can be rendered invalid in some cases. In addition, a living will drafted in one state my not be recognized in another. When properly executed according to state law, however, a living will should be easily enforceable in that state.
Most states accept the validity of living wills and some states even impose penalties on health providers who fail to comply with the patient’s instructions. Even family and health care providers cannot change the terms of a living will, and doctors and nurses who comply with your loved one’s wishes are usually protected from criminal or civil responsibility for their actions. Further, states with living will statutes usually provide protections for life insurance benefits that might otherwise be jeopardized. (Many life insurance policies do not pay benefits in the case of suicide, and most states specify that the execution of a living will cannot legally be considered suicide.)
State statutes frequently specify what type of medical treatment may be withdrawn. Most living wills direct that only “life-sustaining” or “life-prolonging” treatments should be withdrawn. These are generally defined as treatments that are used to artificially prolong the dying process, but which will not ultimately prevent someone from dying. In addition, some states forbid the withdrawal of certain treatments, such as artificial nutrition and hydration. And almost all states will not allow comfort care and pain-relieving treatment to be withdrawn.
Because the living will applies only in narrowly and sometimes unclearly defined circumstances, it may be in your loved one’s best interest to have both a living will and a durable power of attorney for health care, or to combine them into one advance directive. In this case, the durable power of attorney states who should make the decisions, while the living will tells that agent what to decide.
Because different states have specific guidelines as to what an individual may or may not include in a living will and how to set up a health care power of attorney, it is advisable to consult with a lawyer or health care provider to obtain advice about the requirements that govern such documents in your loved one’s state. Other good sources of legal information include your loved one’s state’s Attorney General’s Office or Office on Aging. But while specific state laws may vary quite a bit, there are some general legal guidelines that apply in most cases.
In the United States, rights to advance medical directives are protected by the Federal Patient Self-Determination Act. This federal law requires hospitals, skilled nursing facilities, hospices, home health agencies, and managed care plans to give their patients who are covered by Medicare or Medicaid information about advance directives. The law is intended to increase a person’s control over medical treatment decisions. However, health care providers only have to provide information about the laws for the state in which they are located. For more information, contact an Insurance Counseling Program for Medicare beneficiaries in your loved one’s area.
In most states, advance directives must be signed in the presence of two people who then sign the document as witnesses. Each state has different requirements regarding who may or may not be a witness. In general, however, anyone who could stand to benefit from the person’s death—such as beneficiaries of life insurance policies and/or heirs to the person’s estate—cannot be a witness. Many states also prohibit health care practitioners, including the person’s doctor, attending nurses, and other professionals involved in health care, from being witnesses.
In order to avoid later challenges to an advance directive, your loved one should attempt to find witnesses who are not relatives, have no financial connections to him or her, and have no relationship to possible medical treatment. Your loved one should also make sure that any potential witnesses are familiar with his or her wishes, and that the witnesses will be available to appear at a hearing should the validity of the directive be challenged. Furthermore, witnesses need to be familiar enough with your loved one’s condition that they can testify that your loved one was fully competent when he or she signed the document.
Most state statutes require that a person be “competent” or of “sound mind” in order to execute an advance directive. For states that offer a model form, a statement of competency is generally included. In addition, the model forms generally provide that witnesses who can affirm the competency of the individual must sign the document.
Some states also allow persons to draft a living will or other directive on behalf of incompetent adults. Such statutes often provide a list of individuals who are authorized to execute the document on behalf of the incompetent individual.
Some states with advance directive statutes provide a model document that may be followed. The model documents are standardized forms with blanks provided for the proper signatures. Any required witnesses should be present when an individual signs the document so that they can later confirm that the signature is an original. Witnesses may also be called upon to comment about the circumstances surrounding the signing, especially if there is concern that the individual was coerced into signing the document.
Some states require persons who wish to execute an advance directive to use their model form; others allow for modifications; and still others offer the model form only as a suggested guide. If your loved one lives in a state that provides a model form, it is a good idea for him or her to adhere to the model as closely as possible in order to prevent later objections to the implementation of the directive.
If your loved one wishes to specify additional directions to those provided on the model form, such directions should be written as an addendum to the model. This will ensure that the provisions of the basic document are enforced even if the additional directions are found to be invalid. To avoid the possibility of additional directions being found invalid, it is also wise to make sure that these provisions are written, signed, and witnessed in accordance with state requirements.
In some states, an advance medical directive doesn’t take effect until it has been delivered to certain individuals. Generally, a copy must be provided to the physician responsible for treatment. A few states also require that the document filed with a state agency or with a state court. Your loved one should provide copies of any documents to all persons likely to be involved with his or her care. In addition, he or she should be sure to distribute copies to friends, family, and others who might be in a position to bring the document to the attention of the attending physician.
A properly executed advance directive will remain in force throughout your loved one’s lifetime, unless revoked. Some states, however, impose a time limitation on how long a directive is effective without being re-executed. Most states also provide specific methods for revoking these documents. The methods vary, and include any expression of your loved one’s desire to revoke the document.
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Adapted from Medicare and Advance Directives, Publication No. HCFA 02175, developed by the United States Department of Health and Human Services Health Care Financing Administration.
Consumer’s Guide For Planning Ahead: The Health Care Power of Attorney and The Living Will, Serial No. 102-P, prepared by the United States Senate Special Committee on Aging.