Health Care Directive FAQ - United States


A health care directive is a written document or set of documents that is used to express your health care wishes when you are no longer able to personally communicate those wishes. LawDepot's health care directive is comprised of 2 parts: a living will and a medical power of attorney.
Health Care Directive BasicsThe PrincipalThe Health Care RepresentativeTerminologyAnatomic GiftsModification and RevocationMiscellaneousSigning Details
Health Care Directive Basics
I'm getting older. What documents should I have in place?

If you are getting older or if you have dependants, there are three documents you should prepare to help your loved ones manage your affairs.

  1. Health Care Directive: Your Health Care Directive (also called Living Will or Personal Directive or Advance Decision) is used to appoint someone to make health care and personal care decisions for you (of a non-financial nature) and describes any medical treatment preferences you may have in the event you are no longer able to communicate or are incapable of giving consent.
  2. Power of Attorney: Your Power of Attorney grants authority over your financial decision making to someone you trust in case you become unable to communicate or incapable of giving consent. A Power of Attorney may also be used to grant full or limited powers over your financial affairs when you will be travelling or otherwise unavailable.
  3. Last Will: Your Last Will describes how to distribute your estate after you die.
What is a health care directive?

A health care directive, also called an enduring power of attorney for health care, advance directive or living will, sets out in writing your wishes for your medical care and treatment. It may also name a person to make sure those wishes are carried out. Usually, a health care directive contains specific directions on the course of action you would or would not like to take if you are in a terminal condition, a permanent coma or in a persistent vegetative state. It may provide instructions on whether or not you wish to receive artificial life support, artificially administered food and water or comfort and care.

What is the difference between a Last Will and a Health Care Directive?

A Last Will is used to distribute your property after your death. A Health Care Directive allows you to specify, in writing, your health care preferences for the time when you no longer have capacity to provide consent. A Last Will cannot be used to specify what type of medical treatment you want.

Why do I require a health care directive?

Should you suffer from an accident or illness, you may not be able to communicate the type of treatment you wish to receive. In such circumstances, your health care provider and your family will be obliged to guess what your health care wishes are. However, if you have signed a health care directive, your health care wishes will be clear and no guess work will be required.

Do I need a lawyer to create a health care directive?

No. A health care directive can be created without the assistance of a lawyer.

Do I need a health care directive if I already have a last will and testament?

Yes. Health care directives and last wills are very different. Your last will and testament deals with the distribution of property after your death. In contrast, a health care directive deals with your health and personal care and applies when you are alive and cannot communicate your wishes.

What is a living will?

A living will allows you to convey your wishes regarding medical treatment when you are unable. Usually, a living will contains specific directions on the course of action you would or would not like to take if you are in a terminal condition, a permanent coma or in a persistent vegetative state. It may provide instructions on whether or not you wish to receive artificial life support, artificially administered food and water or comfort and care.

What is a medical power of attorney?

A medical power of attorney allows you to designate someone to make health care decisions for you when you are unable. This type of document will authorize your health care representative to make decisions such as whether or not you wish to receive certain medical treatments or procedures. A medical power of attorney is sometimes referred to as a health care power of attorney or a health care proxy.

If I have a durable power of attorney do I also need a medical power of attorney?

Durable powers of attorney and medical powers of attorney are both documents used to authorize someone to act for you after you have lost capacity or if you cannot communicate. However, a durable power of attorney usually allows an attorney-in-fact to make decisions relating to only your property and finances while a medical power of attorney allows a health care representative to make decisions relating to your health. Consequently, you should have a medical power of attorney in addition to any durable power of attorney.

Will my health care directive be legally binding?

Once properly signed and witnessed, your health care directive will be legally binding on family, friends and health care personnel (to the extent your directions are consistent with accepted health care practices). However, health care practitioners are not required to ask whether you have signed a directive or search for a directive. Make sure that your family, friends and health care representative know that you have signed a health care directive and let them know where it can be found.

Will my health care provider be obliged to follow the instructions in my health care directive?

Generally, health care providers must follow your health care instructions (to the extent your directions are consistent with accepted health care practices). However, if a health care provider is unwilling to follow your directions, the provider is usually obliged to refer you to another health care provider who will honor your instructions.

How long will a health care directive last?

A health care directive will last until the time of your death unless you have revoked it sooner.

The Principal
Who is the principal?

The principal is the person who will be requiring someone else to act for him or her. The principal must be an adult. The principal must be of "sound mind" and capable of making his or her own decisions at the time the health directive is executed (signed).

Can anyone be a principal?

Anybody who is mentally capable and who is 18 years of age or older may make a health care directive for themselves.

The Health Care Representative
Who is the health care representative?

The person appointed by the principal is called the health care representative. The health care representative is the person who acts for the principal in the event the principal is no longer able to communicate his or her wishes. A health care representative may also be referred to as a proxy, an attorney-in-fact or an agent.

Who cannot act as my health care representative?

Your health care representative should not be:

  • someone who is mentally incapable;
  • someone who is under 18 years of age;
  • a treating health care provider;
  • a non-relative employee of your treating health care provider;
  • an operator of a community care facility; or
  • a non-relative employee of an operator of a community care facility.
Who do I choose to act as my health care representative?

Ensure that you choose an individual whom you trust and whom you feel comfortable sharing your wishes. It is not necessary to choose a health care representative who shares all your beliefs, however you should choose an individual whom you are confident will respect your wishes and who will do his/her best to get the type of health care treatment you want.

It is important to choose a health care representative who will be available when required to make your health care decisions. There may come a time where you require someone to remain by your bedside for long stretches of time to ensure health care personnel follow your wishes. Under these circumstances, it may not be practical to have a representative who resides out of state.

You should discuss your health care wishes with your heath care representative to ensure that he or she will be able to make decisions based on what you have discussed and the information contained in the directive.

Do I need to appoint an alternate health care representative?

You do not need to appoint an alternate health care representative however it is a good safeguard. Should your original representative be unable or unwilling to act on your behalf, your alternate representative could act for you instead.

When will my representative be allowed to make my health care decisions?

Your representative can only make your health care decisions after a doctor has determined that you are not capable of making or communicating responsible health care decisions for yourself.

What will happen if I appoint my spouse as my representative and we later divorce?

Generally, your spouse's authority to act on your behalf will be revoked on your divorce unless you specify something to the contrary in the directive. If you had named an alternate representative, then that person will now have authority to act on your behalf. However, it is usually best to create a new health care directive after a divorce to ensure that your intentions are clear.

Terminology
What is a "health care provider"?

A health care provider is any person who is licensed, certified or otherwise legally authorized to administer health care in the ordinary course of business or practice of a profession.

What is an "attending physician"?

An attending physician refers to the physician licensed by the state board of medicine, selected by or assigned to the patient, and who has primary responsibility for the treatment and care of the patient.

What is "terminal condition"?

Terminal condition means a condition caused by injury, disease or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

What is "permanent coma"?

Permanent coma means a profound state of unconsciousness caused by disease, injury, poison or other means and for which it has been determined that there exists no reasonable expectation of regaining consciousness.

What is "persistent vegetative state"?

Persistent vegetative state means a permanent and irreversible condition in which a person makes no voluntary actions and demonstrates no evidence of having thoughts, is unable to communicate and is unaware of his or her own existence.

What is "artificial life support"?

Artificial life support, also known as "life-prolonging procedures" or "life-sustaining procedures" means any medical procedure, treatment or intervention which sustains, restores or supplants a spontaneous vital bodily function. In this document, artificial life support does not include artificially administered food or water or procedures that are necessary to provide comfort or alleviate pain (including pain relief medications).

What is "artificially administered food and water"?

Artificially administered food and water, also known as tube feeding, involves putting a tube into a person's stomach (through the nose or through a small hole in the abdomen). This is done for people who are too ill to chew or swallow by themselves or with someone else helping them. Without a feeding tube, such a person who cannot eat will die within days or week. With a feeding tube, the chance that a person will live depends on the person's overall condition.

What is "comfort care"?

Comfort care means treatment, including prescription medication, provided to the patient for the sole purpose of alleviating pain. Artificially administered food and water is not comfort care. The provision of comfort care may result in extending or shortening a person's life.

Anatomic Gifts
What is an anatomic gift?

An anatomic gift refers to the donation of organs or tissues for the purpose of transplantation or for the purpose of dissection in the study of medicine.

Can I make an anatomic gift in my health directive?

To make an anatomic gift, set out your instructions in the Additional Instructions section of the Living Will portion of the Health Directive. You may want to specify the following:

  • whether all organs and tissues can be used or whether only certain organs and tissues can be used;
  • whether there are any limitations or restrictions on the use of your organs or tissues; and
  • who will receive the donation (e.g. any hospital, surgeon, physician, medical school, storage facility or specified individual) and an alternate donee if the original is unable to accept the gift.

Note: In Oklahoma and Wisconsin it is not necessary to use the Additional Instructions section to make an anatomic gift as the health directives in each of these states provides a section for anatomical gifts.

Modification and Revocation
Can I change or alter my health care directive?

If you wish to alter the directions in your health care directive or appoint a different health care representative, you should destroy all copies of the directive and create a brand new directive. Remember that your directive should always reflect your current wishes. Also, ensure that you provide a copy of your new directive to your health care representative, your physician or anyone else who had received the old directive.

Can I revoke my health care directive?

If you wish to revoke your health care directive, the best way to do so is by destroying all copies of the directive and notifying your health care provider of your decision. You may also revoke your directive by informing your attending physician or health care provider that you wish to revoke your directive. Generally, a revocation of a health care power of attorney will only be accepted if the revocation was made while the principal was of sound mind.

Do I require a new health care directive if I move to another jurisdiction?

Each jurisdiction has its own laws, forms and procedures related to health care directives. Most jurisdictions will honor the health care directive of another jurisdiction however it is best to consult with the legislation specific to your jurisdiction to ensure that your health care directive will be recognized.

Miscellaneous
Does an health care directive allow "mercy killing" or euthanasia?

No. Most jurisdictions have laws that prohibit assisted suicide or euthanasia.

Can I write my wishes for funeral arrangements in my health directive?

Yes. You can set out your instructions for funeral arrangements in the Additional Instructions section of the Living Will portion of the Health Directive.

Will my health care directive be honored if I am pregnant?

In many states health care directives will not be valid if you are pregnant. If you are pregnant, it is best to consult with the legislation specific to your state to determine whether your health directive will be recognized.

Signing Details
What should I do with my health care directive once it has been properly signed and witnessed?

You should discuss your health care directive with your health care representative, your family and your family physician. Additionally, you should provide these parties a copy of your directive.

Does my health care directive need to be notarized?

Your health care directive must contain verification of your signature (or the signature of a person authorized by you to sign on your behalf). The verification can usually be made by either a notary public or by 2 witnesses who are 18 years of age or older.

Remember: The notary is authenticating the execution of the document. That means that each person whose signature is being authenticated must be present and sign in front of the notary.

Who cannot act as my witness?

The following people cannot act as your witness:

  • a person who is related to you by blood, marriage or adoption;
  • a health care provider;
  • a person who works for a health care provider;
  • the operator of a community health facility;
  • a person who works for the operator of a community health facility;
  • a person you have designated as your agent or alternate agent (health care representative); or
  • a person who is entitled to any part of your estate on your death, either in your will, or by the laws of intestate succession (a person who is your heir).
Are there any other witnessing formalities?

Both of your witnesses must watch you sign, or they must both be present when you acknowledge your signature. Also, your witnesses must watch each other sign.

 

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