The Facts About Advance Directives

The Facts About Advance Directives

by Michelle Kaminsky, Esq., August 2014

Advance directives allow you to express your wishes regarding health care decisions in the event that you are incapacitated and cannot communicate your preferences yourself. Advance directives can make sure that you receive the care you want, no more and no less; you may, for example, stipulate that you do not wish to be placed on artificial life support.

What is an Advance Directive

Advance directives are important legal documents because along with the practicality of providing instructions to medical professionals, they also offer those who have them great peace of mind knowing that their wishes will be followed. Also, they can spare family and friends from having to make difficult decisions regarding a loved one's care without guidance.

Below you will find basic information regarding advance directives, including the two types of advance directives, when you should create one, where you should keep it, and much more.

Types of Advance Directives

The names of advance directives vary by state, but in general, there are two types: a living will and a power of attorney. Sometimes both documents are combined together and called an advance health care directive.

(1) Living Will: A living will may also be called a health care declaration or an advance medical directive and is separate from a last will and testament, which directs the distribution of a decedent's estate. A living will, on the other hand, takes effect during the lifetime of a person and tells medical professionals the type of care an individual desires should she become incapable of expressing such wishes herself.

Some common issues addressed in a living will include the following:

  • Cardiopulmonary resuscitation (CPR)
  • Artificial life-sustaining equipment (ventilators, dialysis machines, etc.), hydration, and nutrition (feeding tubes)
  • Organ donation.

(2) Health Care Power of Attorney: A health care power of attorney may also be called a medical power of attorney or durable power of attorney for health care (among other names) and allows a person to nominate someone to oversee his healthcare decisions should he be unable to do so, either temporarily or permanently.

The person named in the document may be referred to as an attorney-in-fact, health care proxy, health care agent, health care surrogate, or something similar. Regardless of what the agent is called, he is obligated by law to follow your wishes regarding health care decisions; you may also give this person the power to make other decisions for your care that aren’t covered in the advance directive.

When is the best time to create an advance directive?

The best time to create an advance directive is when you’re healthy because you have the opportunity to consider your options carefully, when immediate health concerns aren't on your mind. Moreover, you can also discuss your choices with your loved ones ahead of time.

It is especially advisable for those who are scheduled to undergo surgery or who are critically or terminally to consider drafting an advance directive.

Are advance directives state-specific?

The laws concerning advance directives vary by state, so yes, advance directives are state-specific. This means it is important that your advance directive complies with the laws of the state in which you reside and/or will be receiving medical care.

If you spend considerable time in more than one state, you should consider having an advance directive tailored to each state or at least one that complies with each state's laws.

When does an advance directive take effect?

In general, your health care agent has authority under your advance directive when you are unable to make medical decisions. Your living will provisions are effective when you are affected by the medical condition as specified by state law, e.g., “permanent unconsciousness.” There may be other requirements under state law as well.

Can I change an advance directive?

Your advance directive remains in effect from the time you sign it until and unless you change it, which you can do at any time. Indeed, you should review your advance directive periodically to make sure it still represents your wishes. If you do want to modify an advance directive, it is often advisable to simply create a new one so there is no potential confusion created by conflicting changes.

Where should I store my advance directive?

You should make several copies of your advance directive. While you should keep the original in a safe place (and let someone know where it is) or with a holding service, copies should be given to person named in the document as your agent, your doctors, and anyone else you think may be involved in your medical care.

What if I don't have an advance directive or mine can't be found?

If you don’t have an advance directive or if yours can’t be found, it will be up to your doctors and family members to decide the best course of care for you, which may or may not be what you would have wanted. This is why it is so important to have an advance directive in place and easily accessible—to keep your health care in your hands even if you can’t communicate your wishes in the moment.

As you can see, advance directives serve an extremely important purpose for those who have them, their loved ones, and medical professionals alike—and there's no time like the present to start thinking about what kind of care you would prefer to receive if you become incapacitated.

Protect yourself and your loved ones by creating an advance directive living will online today.