What is an Advanced Directive?

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An advanced directive, also known as a living will, is a legal document that provides instructions regarding medical or health care. This document contains instructions regarding how an individual is to be treated should they become incapacitated or unable to make decisions regarding their own health care. An advanced directive is often created in anticipation of old age or, more commonly, as a measure against unexpected injury.

An advanced directive is also known as an advance medical directive or a healthcare proxy. This type of legal document appoints an agent, known as a proxy, who is assigned with the task of overseeing the individual’s health care decisions when necessary.

The proxy is required to accept their role as agent. This role may begin at a specified date in the contract, such as when an individual turns a certain age, or if the individual becomes incapacitated.

Who Can Make an Advanced Directive?

An advanced directive can be made by any individual that is of legal age to enter into a written contract. This is generally 18 in most states, but may vary.

Advanced directives fall under general contract rules and principal-agent rules. The creator is also required to have the mental capacity to make legal decisions at the time the advanced directive is created.

The mental capacity requirement is extremely important. One of the main reasons for the creation of an advanced directive is for the creator to make the document while they still have the mental capacity to do so. Therefore, it is best if the advanced directive is created well before old age or injuries occur.

I Have Decided to Make an Advanced Directive. What Do I Need to Do?

The first step in creating an advanced directive is to consider some difficult questions regarding how an individual would like their life to be artificially prolonged by medical staff. The field of medicine is constantly changing, evolving, and developing new innovations. Therefore, an individual should discuss their medical treatment wishes with their doctors first in order to determine what types of treatments may be available.

The more specific an individual’s advanced directive is, the better an individual’s doctors and loved ones will be able to follow the individual’s wishes. It is important for an individual to be familiar with the types of decisions their loved ones may be required to make in the future.

Should I Put My Wishes in Writing?

Without question, an individual should put their wishes in writing. Although some states allow oral living wills, there is usually little to no evidence of oral states. Additionally, if different individuals have different recollections about what someone may have wanted, or are too emotional to make a proper decision, issues may arise. The best solution is to have a legal document outlining an individual’s wishes for their medical caregiver to utilize.

If an individual is seriously injured or suffers a serious illness and becomes unable to make their own medical treatment decisions, the only way to ensure they retain their legal ability to control their own medical treatment is to create a written advanced directive. Having the advanced directive in writing removes any uncertainty regarding what the individual’s wishes may have been. It also removes emotional decisions from loved ones and ensures that only the individual’s requests to be treated or requests not to be treated are carried out.

What Should be Included in a Living Will?

It may be challenging to know what to put in a living will. Creating a living will requires some amount of foresight on the part of an individual. It may also require the ability to anticipate some unforeseen factors that might affect an individual, their loved ones, or their estate.

An individual should attempt to address as many factors as possible in their living will, including:

  • The name and contract information of the individual to serve as proxy;
  • Whether or not an individual wishes to be subject to certain surgeries, medicines, procedures, therapies, etc.;
  • What an individual wishes to happen should they need medical care while unconscious;
  • Whether the living will is going to expire upon their recovery;
  • Which physician or medical facilities are authorized to treat the individual;
  • Whether or not the individual has any religious concerns that will interact with treatment options; and
  • What should happen in the event of a legal dispute over the instructions contained in the advanced directive.

As noted above, there are many different factors that need to be addressed in an advanced directive. There are also specific instructions regarding life-sustaining medical care that may be included, such as:

  • Whether or not an individual wants doctors to use CPR or fibrillation to attempt to restart their heart if it stops beating;
  • Whether or not an individual wants doctors to use breathing tubes to help them breathe, which may include inserting tubes in their throat or putting them on a ventilator;
  • Whether or not an individual wants to be fed or hydrated indefinitely if they are in a vegetative state;
  • Whether or not an individual wants to be put on a dialysis machine if their kidneys cease to function; or
  • What type of pain management options the individual wants administered or not administered.

An individual should contact an attorney for help creating an advanced directive to ensure their wishes will be property carried out.

Can an Advanced Directive be Modified at a Later Date?

Yes, an advanced directive may be modified at a later date, like any written legal document. It may be necessary to modify an advanced directive in order to adjust for changes in the individual’s health or medical condition. If any changes are going to be made or are made, notice should be given to the proxy.

Additionally, some advanced directives may expire if the creator of the advanced directive recovers from their medical condition or regains the ability to make important decisions. The creator of the advanced directive should include a clause specifically addressing how any modifications should be made and to what extent the document can be modified. There are other available options, such as a power of attorney that may be needed when dealing with medical decisions at a later date.

What if I Have a Dispute over an Advanced Directive?

A dispute over an advanced directive can be difficult to resolve because the creator of the document may be incapacitated or in a similar situation when the advanced directive is enacted. Typically, the proxy can make legal decisions on behalf of the incapacitated individual. Therefore, it is advisable to include specific instructions regarding the scope of the authority of the proxy.

If the dispute cannot be resolved through informal discussions, it may be necessary to file a lawsuit. A lawsuit may assist in clarifying misunderstandings or errors as the court reviews the relevant documents. If the issues involve economic losses or financial disputes, a court may issue a damages award to compensate for the plaintiff’s losses.

Do I Need a Lawyer for Help with an Advanced Directive?

It is essential to have the assistance of an experienced estate lawyer with any advanced directive issues. Advanced directives may present unique legal issues that are best examined by an attorney.

An attorney can assist you with drafting the advanced directive, determining what needs to be included in the document, and ensuring your wishes are clearly outlined. Each state may have specific laws regarding advance directives, so it is important to ensure that yours complies with local requirements. Having an attorney draft your advanced directive may mean the difference between not having your wishes carried out and being cared for as you want to be in the event you cannot care for yourself.

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