Comprehensive Health-Care Advance Directives

The third appendix to this book provides a sample health-care advance directive prepared by AARP, the ABA, and the AMA. It not only permits you to name a health care agent and specify his or her powers (a health care power of attorney), but it also provides instructions about end-of-life treatment (a living will). It also enables you to state in advance whether you want to donate organs at death, and permits you to nominate a guardian of your person should one be required.

Using this comprehensive single document obviously is more convenient and less prone to confusion than having several documents covering portions of your health-care wishes. It meets the legal requirements of most states. Even if it does not meet the requirements of your state, it may provide an effective statement of your wishes if you cannot speak for yourself.

Remember, federal law now gives you the right to consent to or refuse any medical treatment, and to receive information about

• the risks and possible consequences of the procedure,

• advance directives (such as living wills), and

• life-sustaining medical care and your right to choose whether to receive it.

No one else, not even a family member, has the right to make these kinds of decisions, unless you’ve been adjudged incompetent (see “Guardianships” below) or are unable to make such decisions because, for example, you’re in a coma or it’s an emergency situation. No one can force an unwilling adult to accept medical treatment, even if it means saving his or her life.

Society has gradually come to a rough consensus on these principles, and almost all medical providers follow them. Where difficulties still arise is when your wishes or intentions aren’t clear. That’s where the next planning tool comes in.

Health-Care Advance Directives

In an emergency, the law presumes consent. In all other instances, someone else must make decisions for you. The best way to ensure that decisions are made the way you would want and by the person you want, is to do an advance directive for health care before you become incapacitated.

An advance directive is generally a written statement, which you complete in advance of serious illness, about how you want medical decisions made. The two most common forms of advance directive are a “living will” and a “durable power of attorney for health care,” although in many states you may combine these into a single advance directive document.

An advance directive allows you to state your choices for health care or to name someone to make those choices for you, if you become unable to make decisions about your medical treatment. In short, an advance directive enables you to have some control over your future medical care.

A durable power of attorney for health care (sometimes called “health care proxy”) is a document that appoints someone of your choice to be your authorized agent (or “attorney-in-fact” or “proxy”) for purposes of health care decisions. You can give your agent as much or as little authority as you wish to make some or all health care decisions for you.

The durable power of attorney for health care is a more comprehensive and flexible document than a living will. It can cover any health care decision and is not limited to terminal illness or permanent coma. More importantly, it authorizes someone of your choice to weigh all the facts at the time a decision needs to be made and to legally speak for you according to any guidelines you provide.

No one can tell you exactly what to say in your advance directive. Consider addressing:

(1) Alternate proxies.Whenever possible, name one or more alternate or successor agents in case your primary agent is unavailable.

(2) Life-sustaining treatments. Are there any specific types of treatment you want or don't want in any circumstances? Your personal or family medical history may make certain conditions or treatments more likely.

(3) Artificial nutrition and hydration. Some states will presume that you want nutrition and hydration in all circumstances unles you instruct otherwise.

(4) Organ donation. In many states, you can include instructions about donating organs in your advance directive, or, better yet, on the back of your drivers' license. The idea is to have the information known while there is still time to "harvest" the organs and put them to use.

Talk It Out

The most important point to remember about forms is that they are supposed to aid, and not take the place of discussion and dialog. Therefore, a form ought to be a starting point, not an end point, for making your wishes known. There is no ideal form. Any form you use should be personalized to reflect your values and preferences. Before doing an advance directive, talk with your doctor, family members, and advisors. This will help you to understand the medical possibilities you may face and clarify your values and choices.

But I’m His Wife…

To many couples, it seems natural that one spouse should be able to speak for the other if he or she is disabled. The law doesn’t always see it that way. Many states have family consent (or health surrogate) laws permitting other family members to make some or all health care decisions on your behalf. Persons authorized are usually family members, in order of kinship. Even without such laws, doctors routinely rely on family consent, as long as decisions are not controversial and are made by close family members. But without an advance directive, decisions may not be made the way you would want them, or by the person you would want to make them. Making an advance directive also benefits your family members, because it spares them the agony of having to guess what you would really want.