This article focuses on how, when and why elderly individuals should create an Advance Health Care Directive / Living Will. There is considerable ambiguity about what defines this legal document, so an attempt has been made to differentiate it from other legal documents for the elderly such as a Healthcare Power of Attorney and a Do Not Resuscitate.
For the purposes of this article, we will refer to the Advance Health Care Directive / Living Will as simply AHCD. However readers should be aware that many other names are used to describe this same document including: personal directive, advance decision and medical directive.
In a traditional sense, an Advance Health Care Directive (AHCD) gives specific instructions regarding what health care decisions to make and what medical actions to take should one not be able to communicate their desires. Creating a directive does not prohibit someone from making their own decisions when the time comes, it is simply a backup plan if one is not able to communicate if, for example, they have fallen into a coma.
AHCD vs. Healthcare POA vs. DNR
An AHCD is also a broader term and serves a broader purpose. In addition to stating what medical actions should be taken it, it can also designate someone to make medical decisions on their behalf, should they not be able to make those decisions for themselves. This is a specific type of AHCD which is called a Healthcare Power of Attorney.
Another specific type of AHCD is called a Do Not Resuscitate or DNR (among many other names). A DNR simply details what medical actions should not be taken if one’s heart or breathing were to stop.
Most commonly an Advance Health Care Directive defines what action should be taken if the individual has an incurable and irreversible condition which will eventually result in their death. For example the directive will state, do everything possible to prolong my life or it will state do not engage in the following medical procedures to prolong my life… .
Depending on the instructions given in the AHCD and also on the state in which one resides, the relevant parties involved in or required for the creation of an AHCD can change. Follows is a description of the potential parties, their roles and the legal names by which they may be referred.
1. Principal – refers to individual who is designating what actions should be taken. If someone were to say “this is my mother’s Advance Health Care Directive” then their mother would be the principal.
2. Agent – if the AHCD designates a person to make healthcare decisions on behalf of the principal, the designated person is referred to as an agent. The agent is also called an attorney-in-fact. Any adult can serve an agent. Most commonly it is an adult child who is caring for an aging parent that is appointed the agent but also common are siblings, grandchildren and other relatives.
3. Successor Agent – a successor agent can be thought of as a vice-president. They take over if the agent cannot manage the responsibility.
4. Witness – is an individual who witnesses the signing of the document by signing it themselves. Some states require the witness to be a Notary Public. Some states require a Patient Advocate or Long Term Care Ombudsmen to sign the document if the Principal is currently residing in a nursing home.
5. Doctor / Medical Professional – a doctor or other medical professional can play a role in the creation of an AHCD in either of two ways. In some states, one can optionally designate who their primary physician is. The second role a medical professional can play is when there may be some question regarding the competency of the individual creating the directive. For example, if the individual has Alzheimer’s, the creators of the AHCD directive may want a doctor to certify the principal was cognizant and competent at the time they were creating the document.
6. Lawyer – legal assistance is not needed to create an Advanced Health Care Directive. Despite this many families choose to work with and store the document with an attorney.
7. Other Family Members – relatives of the individual creating the Advanced Health Care Directive do not need to consent to, or be present at signing. Nor is it required that they be notified of its existence. However, it is considered a prudent course of action to notify one’s family member of the existence of an Advanced Health Care Directive, if not its contents.
An Advanced Health Care Directive can serve several different purposes such as stating one’s wishes or designating someone else to make decisions. Therefore, it is suggested that all aging individuals create one if they have not already accomplished these goals through other legal documents such as a Healthcare Power of Attorney.
Should one lose their basic competence without an Advance Health Care Directive in place then medical decisions are made by medical staff or by a healthcare surrogate who is selected by the attending physician, until such time as the courts can designate someone formally.
How much does it cost to create an AHCD and is assistance necessary and available? The cost to create an AHCD can be very minor or even non-existent. However if professional assistance is used, one might find themselves paying $500 – $1,000 out-of-pocket. To clarify, a doctor and lawyer are not required parties in the process. However in some instances, it may be beneficial to have a doctor certify that the person creating the AHCD is of sound mind when they are signing the document. This can help to prevent possible legal conflicts in the future. Some families choose to have an attorney assist, mostly out of convenience; they may be engaging in other estate planning legal work and the attorney puts forth the idea of an AHCD. Some states require notarization of the document, so a notary public fee can add $25 or slightly more to the cost.
There are many self-service assistance options available on the National Healthcare Decisions Day website. Also available is a downloadable Excel spreadsheet, which contains a list of national and local organizations that provide assistance. Download the spreadsheet.
Once created, it is important for family members and physicians to be aware of the Advance Health Care Directive. While it is understandable that some persons may wish to keep the contents of the AHCD confidential, it is vital that the relevant parties be notified of its existence and its location. It may be beneficial to store a copy with one’s primary care doctor, one’s attorney and with family members, especially if one family member is being designated as a healthcare power of attorney.