Advance Health Care Directives

An advance health care directive allows you to express your wishes regarding medical care and treatment in the event you become incapacitated. In some states, an advance directive may include a “living will” and/or “durable (health care) power of attorney.” Advance directives are typically divided into several sections in which you can:

  1. Name a designated health care agent or proxy whom you authorize to make health care decisions on your behalf. This may be referred to as a “durable (or health care) power of attorney.”
  2. Specify what type of care you wish to receive if you become incapacitated through an injury or illness. This may be referred to as a “living will.”
  3. Identify the extent of pain relief you would like to receive and whether you authorize pain relief drugs that may hasten your death.
  4. Provide instructions regarding the disposition of your organs and other body parts upon your death.

Life Legal recommends that you discuss your health care wishes in detail with your designated health care agent. Include the reasons underlying your wishes, such as your religious beliefs and personal convictions. If your health care agent is not your spouse, discuss your wishes with your spouse, as well as adult children and any other close family members.

We also urge you to discuss your wishes with your physician. Ask whether he or she supports your health care decisions. DO NOT choose your physician or the director of a health care facility or residential facility as your health care agent.

While many people consider advance health care directives to be solely applicable to “end of life” medical decisions, our experience is that individuals who most need an advance directive are in their 20’s through 60’s and are not terminally ill. We have handled scores of cases involving young patients who suffered a brain injury through an accident or cardiac event that left them incapacitated and in need of long-term care, including the provision of artificial nutrition and hydration.

We live in a culture where value of human life is based on utility, rather than inherent dignity. In our experience, health care providers can be quick to withdraw care based on a lack of “quality of life,” which is a vague and highly subjective criterion.

Protect yourself by designating a trusted and informed health care agent who will ensure that your wishes, expressed directly to your agent and/or in an advance health care directive, are followed.

SAMPLE ADVANCE DIRECTIVE INSTRUCTIONS

END-OF-LIFE OR LONG-TERM CARE DECISIONS
I direct my health care agent, health care providers and/or others involved in my care to provide treatment in accordance with the choice(s) I have marked below:

RELIEF FROM PAIN
Many people are concerned that alleviation of all pain or discomfort may hasten death. Advance directives often include a provision whereby you can state the extent of pain relief you wish to receive. You can, for example, write, “I do not want pain relief that will hasten or induce my death.”

OTHER WISHES
Many advance directive forms allow you to include other wishes or instructions for medical care and treatment. You may wish to include a statement reminding health care providers that you do not want your death to be hastened or induced under any circumstances. For example, you can write, “I understand that my agent(s) will likely be greatly pressured to ‘protect my dignity’ and comply with ‘generally accepted medical norms’ in certain circumstances to hasten or induce my death by medical intervention or inaction. The length, term, and quality of my life is up to God, not my agent. I instruct my agent to comply with my wishes as stated herein.”

You may also simply state, “I do not want my death to be hastened or induced under any circumstances, even if my prognosis is very poor. I want to continue to receive medical treatment and nutrition and hydration.”

DISPOSITION OF ORGANS
Advance directive forms allow you to state whether you would like to donate all or some of your organs and body parts. This is a very personal decision that requires careful thought. You should familiarize yourself with the process of organ harvesting and transplant before signing any agreement to be an organ donor, whether through an advance directive or through an organ and tissue donor registry (e.g., Department of Motor Vehicles registration).

If you choose to be an organ donor, Life Legal’s recommendation is that you authorize your designated health care agent to make the decision whether to donate your organs in real time, rather than giving prior permission to harvest your organs:

  • For example, you can write: “I give sole authority regarding the disposition of my organs and other body parts to my health care agent named in this document.
  • You may even wish to add, “If my named health care agent is unable or unwilling to comply with my wishes, I do not want to donate my organs.”
  • Of course, you may also refuse to donate your organs by writing, “I do not want to donate my organs.”

If you have questions or would like assistance with particular language expressing your wishes, please call Life Legal at 707.224.6675.

ADVANCE HEALTH CARE DIRECTIVE GUIDANCE

  • Familiarize yourself with the signature requirements in your state. Many states require an advance health care directive to be signed in the presence of two witnesses and/or notarized by a notary.
  • Provide your designated health care agent and your doctor with a signed and dated copy of your advance directive.
  • As soon your advance health care directive is duly signed and/or notarized, it is a legally binding document. If you change your mind about your designated health care agent or health care wishes, we recommend that you execute new advance directive and destroy all copies of the previous document.
  • Many advance health care directives and durable (health care) power of attorney templates include provisions authorizing the withholding or withdrawal of “extraordinary” care. This is a highly subjective term and we do not recommend signing provisions that include refusing “extraordinary” care. Instead, you can replace those provisions with the language suggested above.
  • Similarly, we do not recommend including phrases such as “within the limits of generally accepted health care standards,” as this too is highly subjective. You may either strike out such phrases or replace them with the language suggested above.
  • Please be aware that every state has a statutory “futility of care” provision whereby physicians are not obligated to provide care they do not believe to be medically beneficial, regardless of the instructions in your advance directive.

State-specific advance health care directive templates are available through the American Bar Association’s Commission on Law and Aging. Click here to access the forms. Note that you may write in specific instructions regarding your health care wishes. You may also cross out any items you find objectionable.

Disclaimer: Life Legal does not endorse every agency or organization represented on the document linked above. This is merely a source for state-approved advance directive forms.

Life Legal strongly recommends working with a pro-life attorney who is committed to protecting you from premature or unnecessary withdrawal or withholding of life-sustaining medical care and treatment. If you need a recommendation for a pro-life attorney, please call Life Legal at 707.224.6675.