Advance Healthcare Directives

The Simone Legal Complete Estate Planning package contains more than just a Living Trust; for each client it also contains a Will, Power Of Attorney , HIPAA Waiver, Final Instructions and an “Advance Healthcare Directive.” While most people understand the other elements, the “AHCD” remains a mystery to most. So let’s take care of that right now.

An Advance Health Care Directive is an estate planning document that documents your medical care preferences in the event you are incapacitated, heavily medicated, or simply unable to communicate with your doctors for any reason, and allows you to designate another individual – your “Healthcare Agent” – to make medical decisions for you and carry out your wishes. This is a very personal document as it also outlines directions about termination of life support in the event of an irreversible vegetative state, and gives instructions about organ donation or burial/cremation. This is a document that is used when you are in your most vulnerable state – as such, it should be carefully crafted to express that which you feel strongly about in terms of medical decisions and end-of-life decisions, and should be fully customized to effectively relay your wishes to your doctors and your family.

What Kind of Medical Decisions Can an Advance Directive Cover?

Your Health Care Agent will be able to access your medical records, communicate with your doctors, sign Consents to Treatment, Refusal to Permit Treatment, admit you or release you from a hospital, place you in a care facility, authorize pain relief, make life-and-death decisions (or, life support decisions), authorize an autopsy, organ donation (per your wishes), obtain death certificates, and arrange for the disposition of your remains by way of a cremation or burial (as you instruct in the document).

An Advance Directive is different from a Living Will, DNR or Medical Power of Attorney

An Advance Healthcare Directive combines the provisions of a “Living Will” (which is a directive about end-of-life decisions, such as cremation or burial and funeral arrangements) and Medical Power of Attorney into a single document. You may have heard of the term “DNR”; while it performs a similar function to the Living Will, it is a separate document from an Advance Health Care Directive. The “Do Not Resuscitate” (or DNR) Directive has a very narrow scope, as its sole purpose is to prevent medical staff from using CPR to save your life if your heart stops beating. A Voluntary Advance Directive for Receiving Oral Feedings and Fluids is another medical document with a very narrow focus applicable only during advanced stage of Alzheimer’s” – stage 6 or 7 (moderate to severe) of the Functional Assessment Staging Tool (“FAST”) which includes severe cognitive decline and the need for extensive assistance for most activities of daily living including toileting and eating. This document instructs against force-feeding, personal comfort, and palliative care.

Here are the four questions we ask that cover these end-of-life decisions:

• “If I ever fall into a persistently vegetative state, I wish to have my misery reduced as painlessly as possible.”
• “If I become senile, I wish to die naturally and without any extraordinary medical treatment.”
• “If I am in an irreversible coma or a persistent vegetative state, I do not want any form of Cardio-Pulmonary Resuscitation (“CPR”).”
• “If I am already in an irreversible coma or persistent vegetative state and I develop some other illness or condition for which an additional course of treatment would be considered, I do not want any additional treatment to be initiated (for example, if I am in an irreversible coma and it is subsequently discovered that I have cancer, I do not want surgery, chemotherapy and/or radiation).”

An Advance Healthcare Directive is important

Contrary to what many people believe, family members are not able to make medical decisions for their loved ones without first having the legal authority to do so. In the absence of a Health Care Directive, should one become incapacitated, his/her family would need to file for a Conservatorship and have a family member appointed by the Court as a Conservator of the Person before they will have the authority to make medical decisions for the incapacitated adult. A Conservatorship is a lengthy, invasive and expensive court process – that can be completely made unnecessary if a person signs his/her Health Care Directive. So just like having a Living Trust keeps your heirs from having to open a lengthy Probate Court Case, the Advance Healthcare Directive keeps your family from having to file a Conservatorship case.

But wait, there’s more!

Parents of teenagers should remember that when their child becomes an Adult on their 18th birthday, they will no longer have access to any medical information about their children, even if their child has been in an accident and taken to an emergency room. Parents of young adults should have their teens sign an Advance Health Care Directive (and HIPAA Waiver) to permit the parent to remain legally in-the-know and involved in the health of their child, especially when children leave home to go to College.

Does My Doctor Have to Follow My Advance Directive?

Yes, although there are some very rare exceptions when a directive conflicts with State or Federal laws, or accepted health care standards. Should a doctor or hospital reject your preference for medical care, your Agent can change your doctors, or transfer you to a medical care provider who is able to honor your decisions, to the extent permitted by law.

Does My Health Care Agent Have to Follow My Individual Healthcare Instructions?

Yes, to the extent that you’ve stated your instructions. Your Healthcare Agent can make decisions for you that you didn’t anticipate or intentionally left undecided, but they can’t override your Individual Healthcare Instructions.

So as you can see, while most of us have never even given thought to the “Advance Healthcare Directive”, it is a very important legal document that all adults should have. This document is included in the Simone Legal Complete Estate Planning package, so you won’t need to worry about it.

Simone Legal  is a law firm representing consumers.  This article is informational only and should not be used as legal advice.  Please note that laws may have changed since this article was published.  Before taking action, we recommend that you consult with us about your specific matter.  Please set up a free legal consultation at stuartsimone.com, e-mail us at info@simonelegal.com or call us at 833-974-6663.  Attorney advertising.