An advance medical directive is a contractual document that a person may utilize to make arrangements for health care decisions in the event that they become incapacitated. Simply put, in the event that a person is not able to make decisions regarding their health care, the written statements contained in an advance directive will be able dictate their wishes regarding their health care. They are sometimes referred to as a health care directive.
In general there are two main types of advance medical directives, a “living will” and a “durable power of attorney.” These are discussed in further detail below. However, there are other forms of agreements that may serve as advance medical directives. These may include a health care proxy and a supported decision making agreement form.
As mentioned above, the two most common forms of advance medical directives are living wills and durable power of attorneys. However, those two forms of medical directives may not be the best option for every individual. Below is a discussion of the different forms in which an individual can make arrangements for health care decisions in the event they become incapacitated.
The most commonly utilized type of advance medical directive is a living will. A living will is a signed and witnessed document that directs others as to how to handle your medical care. It may also include instructions as to what medical treatments you would, or in some cases would not, want to be used to keep you alive.
The most common included advance medical directive provisions in a living will are:
- Orders to accept or deny life sustaining measures when someone is terminally incapacitated;
- Orders to accept or deny the use of mechanical ventilation, dialysis, or tube feeding; or
- Medical directives regarding donating your organs for transplantation or body for scientific study.
As can be seen, living wills tend to mainly deal with and direct what life sustaining measures should be utilized in the case where an individual becomes terminally incapacitated. They may also deal with what types of machines should be used to preserve an individual’s life. However, living wills may also serve to give other extremely specific orders regarding a person’s health care preferences.
Additionally, living wills are not necessary in order to have a do not resuscitate (“DNR”) order, as you may simply inform your doctor and they will include the order in your medical records.
The other most common form of an advance medical directive is a durable power of attorney. A durable power of attorney is a legal document that allows an individual to grant another individual the ability to handle all future decisions regarding their medical care.
Typically, a person will appoint a family member or close friend as the person who holds the power of attorney. A normal power of attorney, which allows another individual to make all legal, medical, or business decisions on behalf of another person. However, in contrast, a durable power of attorney is not revoked when a person becomes incapacitated; this is why durable power of attorneys are utilized in advance medical directives.
Due to the amount of power that a durable power of attorney grants to the individual who holds it, it is important that the grantor fully considers whether to execute one. For example, you should ensure that your values and wishes for your medical care will be respected and properly handled by the individual you name, before executing the document. However, durable power of attorneys may be revoked at any time, so long as the person is sound of mind.
A health care proxy is essentially a document where an individual designates another person to make health care decisions on their behalf, should they become incapacitated or unable to make decisions on their own.
However, unlike a normal power of attorney, a health care proxy does not grant the designated individual the ability to make financial or legal decisions for the individual. Health care proxies only grant the holder the ability to make medical decisions on their behalf.
Supported decision making agreements have risen in popularity in the United States as an alternative to executing a power of attorney or health care proxy. Unlike a power of attorney or a health care proxy, a supported decision making agreement still allows an individual to retain their legal capacity.
For example, supported decision making agreements allow for an individual to be helped in making decisions for themselves by trusted supporters. However, the named supporter does not solely make the decisions for them.
Texas was the first state to pass legislation concerning supported decision making agreements in 2015. Since 2015 Alaska, Delaware, the District of Columbia, Nevada, North Dakota, Rhode Island, and Wisconsin have all joined Texas in passing supported decision making agreement legislation (data current as of September 2019). It is important to note that state laws vary as to the requirements for creating a valid supported decision making agreement, who may serve as a supporter, or the scope of the agreements.
Thus, it is important to research your local state’s laws in order to understand whether supported decision making agreements are available in your state, and whether or not they are the best option for you.
As can be seen, there are numerous different types of advance medical directives that will allow you to plan for your future and direct how medical decisions will be made on your behalf.
Because of the many different options available, it is in your best interest to consult with a well qualified and knowledgeable estate planning attorney in your area. An estate planning attorney will be able to help you meet any necessary requirements.
Additionally, an experienced estate attorney will be able to inform you of what options for advance directives are available in your state. They will also be able to advise you on what option would be the best solution for your particular circumstances. They can also help you properly draft the legal documents necessary for executing the advance medical directive you choose.