Health Care for Older Americans
Older Americans are the fastest-growing segment of our population. The law protects their right to government programs such as Social Security and Medicare, and also impacts housing, pension rights, and the special concerns of older consumers.
What is a health care advance directive?
A health care advance directive is the primary legal tool for any health care decision made when you cannot speak for yourself. "Health care advance directive" is the general term for any written statement you make while competent concerning your future health care wishes. Formal advance directives include the living will and the health care power of attorney.
These legal tools evolved separately in the law, but today they are typically merged in a single, comprehensive advance directive. Visit www.ambar.org/wills for a comprehensive state-by-state listing of health care directives..
How do you plan a health care advance directive?
The starting point is realizing that merely completing an advance directive form will do you very little good if you skip the planning process. The process requires that you talk about your wishes and fears and options with your physician, family and whomever you will rely on to speak for you when you cannot.
Think of the process as a continuing conversation, because it usually needs to happen more than once. Your views change as you age. And they may change dramatically if you encounter serious illness. For example, your thinking about end-of-life options would probably be different if you were a healthy age thirty-five, compared to a chronically ill eighty year-old. Completing an advance directive form should be the end product of the planning process, repeated at various turning points in our lives.
Is a health care advance directive the same as a living will?
No. It serves some of the purposes served by a living will but serves other purposes too.
- A living will (or "medical directive" or "declaration" or "directive to physicians") is simply a written instruction spelling out any treatments you want or don't want if you are unable to speak for yourself and terminally ill or permanently unconscious. A living will says in effect, "Whoever is deciding, please follow these instructions!" On its own, a living will is very limited—it usually applies only to end-of-life decisions, and standard instructions tend to be general. Unless you have a good crystal ball, it is impossible to anticipate every future medical scenario.
- A health care power of attorney (or health care "proxy," or "medical power of attorney") is a document that appoints someone of your choosing to be your authorized "agent" (or "attorney-in-fact" or "proxy"). You can give your agent as much or as little authority as you wish to make health care decisions. The decisions are not limited to just end-of-life decisions. Appointing an agent provides someone with authority to weigh all the medical facts and circumstances and interpret your wishes accordingly. A health care power of attorney is broader and more flexible than the living will.
- A comprehensive Health Care Advance Directive combines the living will and the health care power of attorney into one document. In addition, you may include any other directions, including organ donation or where and how you prefer to be cared for. Because it is more comprehensive and more flexible than the other tools, it is the preferred legal tool.
Why can't I just tell my doctor what I want?
Telling your doctor and others what you want is essential. Effective planning requires this continuing conversation among doctor, patient, and loved ones.
If you don't complete a written directive, conversations provide important evidence of your wishes to help guide decisions later on, especially if your doctor records your wishes in your medical record. In a few states, oral instructions, if properly recorded by the doctor, can have the same legal standing as a written advance directive.
However, both legally and practically, it is far better to do a written advance directive. The written advance directive will carry more weight and is more likely to be followed, especially if it supports and affirms your continuing conversation.
Will doctors and hospitals recognize my advance directive?
Most doctors and health care facilities want to respect your wishes. However, some may refuse to honor an advance directive, perhaps based on religious belief. If a facility has such a policy, it should inform you at the time of admission. Doctors generally do not have the same obligation to inform you ahead of time, so it is up to you to find out your doctor's views.
If a health care provider refuses to honor your wishes expressed in an advance directive, the law in most states requires that the provider make reasonable efforts to transfer you to another provider who will comply.
What is the Patient Self-Determination Act?
Most hospitals, nursing homes, home health agencies, and HMO's routinely provide information on advance directives at the time of admission. They are required to do so under a federal law called the Patient Self-Determination Act (PSDA).
The PSDA simply requires that most health care institutions (but not individual doctors) do the following:
1. Give you at the time of admission a written summary of:
- your health care decision-making rights (Each state has developed such a summary for hospitals, nursing homes, and home health agencies to use.)
- the facility's policies with respect to recognizing advance directives.
- 2. Ask you if you have an advance directive, and document that fact in your medical record if you do. (It is up to you to make sure they get a copy of it).
3. Educate their staff and community about advance directives.
4. Never discriminate against patients based on whether or not they have an advance directive. Thus, it is against the law for them to require either that you have or not have an advance directive.
How do you write an advance directive?
There are all kinds of advance directive forms out there—both official forms in state law and unofficial forms created by state medical and bar associations, national organizations, and others.
No form is perfect for everyone. Keep in mind that the form is to aid, and not take the place of, communication. The form is a tool for planning and not the final outcome of planning. Any form you use should be personalized to reflect your own values, after thoughtful discussion with health care providers, family, and advisors. And after the form is properly signed, discussion should not cease. Your views are likely to evolve over your lifetime.
Your instructions may cover any health care issue, such as:
- states or levels of functioning in which you would not want (or want) life-sustaining treatment, e.g., states such as permanent unconsciousness or severe dementia
- types of life-sustaining treatment you may want or not want and under what conditions
- the use of artificial nutrition & hydration
- instructions about any other specific medical procedure that may be expected, in light of your personal and family medical history
- organ donation wishes
- preferences regarding pain control and comfort care
- preferences regarding other aspects of end-of-life care, such as your place of care and environmental wishes
What kinds of decisions does a health-care agent make?
In writing your advance directive, you’ll have to consider the scope of your agents' authority. A broadly drafted advance directive usually gives an agent authority to:
- consent to or refuse any medical treatment or diagnostic procedure relating to your physical or mental health, including artificial nutrition and hydration
- hire or discharge medical providers and authorize admission to medical and long-term care facilities
- consent to measures for comfort care and pain relief
- have access to all medical records
- take whatever measures are necessary to carry out your wishes, including granting releases or waivers to medical facilities and seeking judicial remedies if problems arise
Remember, you can also limit the authority of your agent in any manner you wish.
How do you select a health-care agent?
The choice of agent is the most important part of this process. Your agent will have great power if you become incapacitated. There is normally no formal oversight of your agent's decisions. Therefore, follow these guidelines:
- Speak to the person beforehand and explain your intentions. Confirm his or her willingness to act and understanding your wishes. That means talking honestly and openly about death and dying.
- Know who can and cannot be a health care agent in your state. Each state has different rules. Most prohibit your doctor and other health care providers from being your agent, unless they are related to you.
- Seriously consider naming successor agents.
- Avoid naming co-agents. It adds potential for disagreement and logistical complications. If you really want co-agents, have a plan for what happens when there is a split decision among them.
- If you trust no one to be your agent, don't name one. Instead, use only the living will or limit the authority of your agent, by giving the agent authority over some but not all treatment decisions, or by requiring concurrence between your agent and physician.
Are there any formalities of signing an advance directive?
All states require some. Most require two witnesses to your signature. A few require notarization, or offer it as an alternative to witnessing.
Find out whether there are any witness restrictions in your state and strictly follow them. You will comply with the witnessing requirements in most states if you avoid using witnesses who are:
- related to you by blood or marriage
- heirs or potential claimants to your estate
- your physician or other medical provider
- employed by a health care facility that is treating you
- responsible for your health care costs
For individuals in nursing homes, some states also require a state nursing home ombudsman or a patient advocate or other designated individual to witness the signing.
Can you change or terminate your advance directive?
Yes. You can change or revoke your advance directive while you have the capacity to do so, and no one can make a health care decision over your objection. You can revoke your directive orally or in writing by just about any means, although it is preferable to do it by writing your agent, physician and anyone else who has a copy of your directive.
If you want to change your advance directive, it is best to execute a new one, since an amendment will require the same signature formalities of a new document anyway.
Where should you keep the directive?
Keep the original in a safe place where it is easily found. Give a copy to:
- your doctor, asking that it be made part of your medical record
- your agent, making sure he or she knows where to find the original any successor agent or family member who is likely to be involved in decisions
- any health care facility you know will be treating you in the future
- your lawyer, even if he or she did not prepare the document
Consider keeping a wallet card containing a notice that an advance directive exists and information about how to contact your agent. State and national groups distribute such cards, but anyone can create a homemade version. In addition, a few national registries of advance directives offer to make your directive available to health care providers electronically.
Talk to your doctor and agent to make sure they understand your directive and have an opportunity to ask you questions. The more they understand your wishes, the better they will be able to carry them out.
When should you review your advance directive?
Review your advance directive at least every five years and definitely after major life transitions or events (e.g., retirement, marriage/divorce, major illness, birth or death in family). Legally, the advance directive continues to be effective until and unless you revoke or amend it.
Is an advance directive still good when you cross state lines?
Providers normally try to follow your wishes, regardless of the form you use or where you executed it. Only if you spend significant amounts of time in more than one state do you seriously need to consider executing an advance directive for each state. In such cases, find out whether one document will meet the formal requirements of these states.
As a practical matter, you may want to name different agents anyway if one agent is not easily available in all locations. The agent should be physically close to the place of care.
