Advanced Health Care Directive. Legal Issues and Questions

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Questioon and answers regatding advance directive for health care, living will, guardianship and organ donation provisions. How to designate a primary physician with an advanced medical directive

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Advance Medical and Health Care Directive  

Health Care Directive Frequently Asked Questions


OUR FREQUENTLY ASKED QUESTIONS WILL HELP YOU TO CLARIFY MANY UNCERTAINTIES YOU MAY HAVE IN REGARDS TO YOUR HEALTH CARE DIRECTIVE
 
 
 

1. When does the Medical Power of Attorney go into effect and how long is it effective?
2. Advance directive - what is it?
3. Who should I give my Health Care Directive?
4. Living Will - what is it?
5. Why do I need both documents?
6. What does "Lack of capacity" mean?
7. Who can be my agent?
8. What if I executed a Power of Attorney for Health Care in one state and then moved to another state?
9. What are the requirements for witnesses to a Health Care Directive?
10. What if the court invalidates my health care directive?
11. If I have a living will, do I also need a real "will" or a "living trust?"
12. What is life-sustaining procedure?
13. What is terminal condition?
14. What if I had a "second thought"?
15. What if my agent cannot perform?
16. I named my wife my health care agent several years ago, and now we got divorced. What happens with my Health Care Power of attorney?
17. What is "futile law"?
18. How does the Durable Power of Attorney for Health Care differ from a Power of Attorney or Durable Power of Attorney?
19. What is artificial nutrition and hydration?
20. I may want to donate my organs after my death for use as transplants or scientific research. What should I do?
21. Can I revoke my Living Will?
22. What is the difference between a Living Will and a Durable Power of Attorney for Health Care?
23. When should I complete a Living Will and a DPOAHC?
24. Who else should know that I have a Living will?
25. What are examples of powers I could give (or NOT give) to my agent in a DPOAHC?
26. Durable Power of Attorney for Health Care - what is it?
27. How will my doctor and hospital know I have a Living Will?
28. Am I required to have an advance directive?
29. What if I don't want a Living Will?
30. What if I have more questions?
31. Do I need a lawyer in order to create an advance directive?
32. Is my family liable if my advance directive instructs no heroic measures or life support?
33. Will the wishes in my advance directive be honored?
34. What if I want to make changes to my advance directives?
35. Who can help me create a health care advance directive?

 

When does the Medical Power of Attorney go into effect and how long is it effective?
It depends on your state law, and therefore, the language of the Power of attorney: in most states it comes into effect after your doctor certifies that you lack the capacity to make your own health care decisions. Some states allow it to be effective immediately after it is properly executed and delivered to the agent. It is effective indefinitely unless it contains a specific termination date, it is revoked, or the principal regains consciousness and competency.

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Advance directive - what is it?
An advance directive is a legal document, written in advance of an incapacitating illness, that allows patients to state their preferences about medical care. Most states recognize two forms of advance directives - a living will and a durable power of attorney for health care.

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Who should I give my Health Care Directive?
First of all, communicate your wishes to your immediate family and leave a copy of your Advance Heath Care Directive with a member of your family. Give the same to your designated agent.
 
Before you execute an Advance Heath Care Directive talk to your doctor and make sure you understand the meaning of all medical procedures possible. Ask that copies be placed in your medical file, and make sure the hospital also has a copy of this important document.

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Living Will - what is it?
A Living Will is one form of Advanced Directive. Other names for a Living Will are a "medical directive" or "medical declaration." A living will instructs your physician to administer no life-sustaining procedures should two physicians agree that you are terminally ill or permanently unconscious. Being terminally ill generally means that you have less than six months to live. If you do not want artificial nutrition or hydration, the law requires that you say so in your document.

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Why do I need both documents?
One document generally does not substitute the other. In a Health Care Power of attorney (or Health Care Proxy) you designate a trusted person to make vital health-related decisions on your behalf, while in a Living Will you are expressing your wishes of preferable methods of treatment and communicating them directly to the world.

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What does "Lack of capacity" mean?
It means you can not understand the nature and consequences of the health care choices that are available to you, and, due to your physical condition you are unable to communicate your wishes to the world.

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Who can be my agent?
This is an important decision. You may have several close relatives or friends who would be willing to become your Health Care (Medical) Power of Attorney or agent. This person should be able to make tough decisions, to speak up in a crisis situation, to understand your values and desires and could speak for you when you are unable to speak for yourself? Pick someone you trust, who will really listen to your feelings and values. Make sure that person is willing to assume the responsibility of being your representative.
 
Choose just one person to serve as your agent and you may avoid disagreements. If you appoint two or more agents to serve together and they disagree, your medical caregivers will have no clear direction. If possible, appoint at least one alternate agent in case your primary agent is not available.
 
Speak to the person (and alternate agents) you wish to appoint beforehand to explain your desires. Confirm their willingness to act for you and their understanding of your wishes.
 
The agent must be a well-known to you and trusted person, older then 18 years of age.
 
The general rule is that you cannot appoint someone who is providing you health care (or an owner, employee or director of that health care provider or of a hospital, psychiatric care facility, hospice, nursing home or other similar facility) unless that person is related to you by blood, marriage or adoption.

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What if I executed a POA for Health Care in one state and then moved to another state?
Your living will may not be honored in another state. Both Power of Attorney for Health Care and Living Will are regulated by state laws, and there may be differences in requirements from state to state.
 
Therefore, it is better to have the same set of documents for your new place of living.

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What are the requirements for witnesses to a Health Care Directive?
In order to be valid, your Living Will and Power of Attorney for Health Care must be signed in the presence of two or more witnesses. The witnesses must also meet certain requirements. They:

  • must be at least 18 years of age;
  • cannot be related to you by blood or marriage;
  • cannot be an heir to any portion of your estate; and
  • cannot be directly responsible for your medical care expenses.

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What if the court invalidates my health care directive?
It is possible that a court could invalidate your document if it wasn't properly completed -- for example, if you did not meet your state's requirements for having the document notarized or witnessed. If this happens, however, it is still likely that any wishes for health care you set out in the document will be followed - as long as they are clearly expressed and you were of sound mind when you wrote them down.
 
In the famous case Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the U.S. Supreme Court said that any strong evidence of someone's wishes for care should be honored. So your directions won't be ignored simply because of a technical error.

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If I have a living will, do I also need a real "will" or a "living trust?"
Yes, because wills and living trusts deal with financial and legal issues, whereas the living will deals with healthcare issues.

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What is life-sustaining procedure?
A life-sustaining procedure is any mechanical or artificial means which sustains, restores or supplies a vital body function and which would only prolong the dying process for a terminal patient. Feeding tube, a mechanical respirator is an example.

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What is terminal condition?
A terminal condition is an irreversible condition that, without life-sustaining procedures, will result in death in a relatively short time or a state of permanent unconsciousness from which recovery is very unlikely.
 
The determination of terminal condition must be made by two physicians.

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What if I had a "second thought"?
You may revoke both of these documents at any time while you are in good state of mind. Make sure you give the copies of the new Power of Attorney and Living Will to your physician, your agent and your family member.

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What if my agent cannot perform?
It is better to appoint an alternate agent in case your original attorney-in-fact becomes unable or unwilling to act in your behalf.

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I named my wife my health care agent several years ago, and now we got divorced. What happens with my Health Care Power of attorney?
Your wife's authority is revoked as soon as you got divorced. In this case, if you named an alternate agent, that person takes over as health care agent. But it is apparently wiser to execute a new document and to make sure your doctor has a new Power of attorney in your file.

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What is "futile law"?
Futile Care laws have been enacted by California, Virginia and Texas. These laws enable doctors and hospitals to overturn the decisions of the family, whom despite the reality of the situation, still want to keep the patient alive, when there is no chance they can survive. In 1999 when George Bush was the Governor of Texas a law was created, that ordered an agent or representative who wanted the patient on life support 10 days to locate another hospital that would be willing to follow their wishes.
 
A Florida case, where the wife of the a terminally ill patient wanted to keep her husband on life support, in spite of the fact that his living will specifically stated he did not wish to being keep alive by artificially means. The wife insisted the hospital follows her wishes rather then those outlined in her husbands living will.
 
The case was brought to court by the hospital. The judge ruled against the wife and supported the patient's living will instructions, which would end life support by artificial means.

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How does the Durable Power of Attorney for Health Care differ from a Power of Attorney or Durable Power of Attorney?
The DPOAHC is a document that allows you to name a person to make health care decisions for you if you ever become unable to speak for yourself. Neither a Power of Attorney nor a Durable Power of Attorney empowers anyone to make health care decisions for you. They normally address financial and/or business matters.

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What is artificial nutrition and hydration?
Artificial nutrition and hydration means invasive procedures such as tubes and intravenous feeding. It does not include the natural process of eating foods and drinking fluids.

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I may want to donate my organs after my death for use as transplants or scientific research. What should I do?
Fill out a Uniform Donor Card and put it in your wallet. Also make sure you communicate your wishes to your close family members and friends.

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Can I revoke my Living Will?
You can revoke your Living Will orally or in writing at any time. A divorce action will revoke your durable power of attorney for health care if your spouse is your agent and you have not named an alternate in your document. It is also a good idea to periodically review your documents to determine whether they still reflect your wishes.

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What is the difference between a Living Will and a Durable Power of Attorney for Health Care?
A Living Will is a document addressing only deathbed considerations. In this document a client unilaterally declares his/her desire that life-prolonging measures be discontinued when there is no hope of ultimate recovery. A client uses a Durable Power of Attorney for all healthcare decisions, limited by certain elections regarding deathbed issues.
 
Do I need both a living will and a durable power of attorney for health care? Yes, it is a good idea to have both documents because they serve two different purposes. A living will takes effect only when there is no hope for recovery, while a durable power of attorney takes effect whenever you become unable to make decisionssuch as during surgery or even when you become temporarily unconscious. Under law, if the terms of your living will and durable power of attorney conflict, the durable power of attorney controls.

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When should I complete a Living Will and a DPOAHC?
Complete these documents before you become ill. An accident or serious illness can happen at any time. Talking with your family and physician now gives you a chance to ask questions and talk about your concerns. If you do this when you're healthy, you'll be thinking clearly as you talk about this.

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Who else should know that I have a Living will?
Your immediate family members, your agent, and your lawyer should receive copies of your Living will.

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What are examples of powers I could give (or NOT give) to my agent in a DPOAHC?

  • Consent to or refuse any medical care used to maintain, diagnose or treat a physical or mental condition.
  • Make arrangements for treatment facilities or individual health care personnel.
  • Review information regarding the status of my health and treatment.
  • Take legal action, if needed, to do what I have directed.
  • Direct the use or withholding of life-prolonging treatment.
  • Make decisions about autopsy and organ donation.
  • Become my guardian, if necessary.

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Durable Power of Attorney for Health Care - what is it?
A durable power of attorney for health care is a document in which you name another person to act as your agent to make your medical decisions if you become incapacitated. You can include instructions about which treatments you do or do not want. If you do not want artificial nutrition or hydration, law requires that you say so in your document.

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How will my doctor and hospital know I have a Living Will?
You should provide your doctor and your hospital with copies of your Living Will for your permanent medical record. Any time you are admitted to a hospital, you will be asked if you have a Living Will and your response noted in your medical record.

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Am I required to have an advance directive?
No. Hospital, nursing home, physician or insurance company may require you to have an advance directive in order to provide you with services.

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What if I don't want a Living Will?
You're not required to have a Living Will if you don't want one, but it's a good idea in order to guarantee that your wishes are followed regarding medical care. Otherwise, your family will have to make difficult decisions or incur large expenses and time delays if a legal guardianship or conservatorship is needed. If you become incapacitated and you have no Living Will, and your doctor and your family disagree about treatment, your health care decisions may have to be made in a court of law.

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What if I have more questions?
You should discuss any questions about advance directives with your family and physician. The hospital's social worker, patient representative or chaplain may be able to assist you, but they can't provide you with legal advice. If you have legal questions, you should consult an attorney.

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Do I need a lawyer in order to create an advance directive?
No.

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Is my family liable if my advance directive instructs no heroic measures or life support?
No.

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Will the wishes in my advance directive be honored?
The law requires that health care providers honor your wishes, although sometimes the documents have created conflict when persons have not talked with family members.

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What if I want to make changes to my advance directives?
This is not difficult to do. You simply create new documents that cancel out the old documents.

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Who can help me create a health care advance directive?
Start by talking to someone who knows you well and can help you state your values and wishes considering your family and medical history. Discuss with your doctor the kinds of medical problems you may face, based on your current health and health history. She/He can help you understand the treatment choices your agent may face. Share your ideas for instructions with your doctor to make sure medical care providers can understand them.

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