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Probate & Property

Jan/Feb 2024

Advance Directives: Drafting and Implementation

Pritish Mishra and Ashely F Lanzel

Summary

  • An advance directive is a legal document that enables an adult client to name an individual as the client’s agent to make health care decisions.
  • The advance directive must contain sufficient information to locate the agent if the client is incapacitated and unable to provide such information.
  • The advance directive should be drafted to give the agent discretion to make the best decision at the relevant time.
  • Organ donation may be included in an advance directive.
Advance Directives: Drafting and Implementation
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An advance directive is a legal document that enables an adult client to (1) name one or more individuals as the client’s agent(s) or attorney(s)-in-fact to make health care decisions on the client’s behalf and (2) specify the client’s wishes with respect to his health care in certain circumstances.

Advance directives present a unique set of challenges for a lawyer who is experienced in drafting legal documents and advising about legal matters but who may have little knowledge or experience regarding medical issues. Because of the dual nature of this document as both a legal document and a medical document, the authors have joined together to combine their respective legal and medical knowledge to provide practical advice regarding how best to address clients’ interests in this important arena. This article will provide specific drafting tips for lawyers as well as recommended steps the client should take after signing an advance directive.

Include Contact Information for the Named Agents

Determining who should serve as the client’s agent is arguably the most important part of the advance directive. Be sure that the advance directive contains sufficient information so that the agent can be located when the client is incapacitated and unable to provide such information. If possible, include multiple avenues for contacting the agent (such as a cell phone number, home phone number, home address) to ensure that physicians are able to communicate with the agent when the time comes.

Sometimes, Less Is More

As long as the client trusts her agent, be careful to draft in a way that gives the agent discretion to make the best decision at the relevant time. A document that is overly specific about how to act in certain circumstances may tie the agent’s hands in making the decision that is truly most consistent with the client’s wishes. Most forms provide the option to include language specifying the client’s health care preferences in certain circumstances. In addition to such language, consider including language giving the agent authority to override those specifications at the time of decision if the agent believes that doing so would be most consistent with the principal’s best interests.

Sample language: I recognize that I cannot foresee everything that might happen or all options that may be available when I am incapable of making medical decisions for myself. My preferences stated in this [Section reference] are meant to guide my agent and my health care providers in making decisions on my behalf. It is my intent that my agent and my health care providers follow my stated preferences if my agent and my health care providers believe that doing so is in my best interest, but my agent shall have the discretion to make the decisions that my agent believes to be in my best interest at the relevant time regardless of what is otherwise stated in this [Section reference].

If the Client Is Strongly in Favor of or Opposed to a Particular Course of Treatment, Spell That Out Specifically

The client may have strong convictions or opinions with respect to certain treatment options, and these preferences should be considered when drafting the advance directive. For instance, if your client is a Jehovah’s Witness and has a religious objection to receiving a blood transfusion, consider specifying that prohibition in the document. If the client believes there is some risk that her agent will have a different view of the client’s best interest, consider including language mandating that the agent specifically follow the written wishes.

Sample language: It is my desire that my agent and my health care providers follow my preferences stated in this [Section reference] exactly as written, even if my agent and/or my health care provider believes that some alternative is better.

Advance Directives Are Important Even if the Client Names Close Family Members as Decision-makers

If no advance directive has been signed, state law generally will fill the gap by providing an order of priority for surrogate decision-makers on behalf of the incapacitated person (e.g., the person’s guardian, if any; followed by close family members, etc.). These individuals may have, however, or may be perceived to have, less authority to make decisions than a named agent and may be limited in the range of their discretion. In contrast, a properly drafted advance directive can enable the specified health care agent to have the same broad right to consent to and refuse treatment as the principal would.

Further, an advance directive allows the client to specify her preferred decision-maker(s), even if such decision-makers are different from the statutory default. For instance, a client who is part of a blended family may wish to name her adult children ahead of or together with her spouse. A client who is unmarried but part of a long-term relationship may wish to name her partner to participate in her health care decisions. Even if the client wishes to name the same individual as would have legal priority under the statute, taking the step to name that individual in the advance directive can give more weight to the agent’s authority by proving that this truly corresponds with the principal’s wishes, especially if there is disagreement among loved ones as to the proper treatment.

If Multiple Decision-makers Are Named, Specify How or in What Order They May Act

Make sure the document is clear about whether the named agents act successively or concurrently. If multiple agents are appointed to act concurrently, be sure to specify whether they must act unanimously or whether either may act alone. If the client has an individual whom she wishes to be part of the conversation but not actually to have legal decision-making authority, consider expressing a nonbinding preference that such individual be consulted by the agent. If there is someone whom the client wishes to play no role in her health care decisions, consider adding a paragraph stating that such individual is disqualified from participating in health care decisions on behalf of the principal.

Consider the Effective Date and Durability of the Advance Directive

For the sake of administrative convenience, it may be simplest to make the advance directive effective immediately, subject to the ability of the client to make her own health care decisions if she has capacity. Alternatively, the client may wish for the document to be “springing” with respect to the health care power of attorney, which would require the additional step of a certification by physicians of the client’s incapacity before the named agent(s) would have authority to access confidential health care information or make health care decisions on behalf of the client.

Because one of the goals of an Advance Directive is to allow the named agent(s) to make health care decisions if the client is incapacitated, be sure to state that the document is durable, i.e., that it is still legally binding even following the client’s incapacity.

Organ Donation

It is not strictly necessary to specify a preference regarding organ donation in a client’s advance directive, but it is a good idea to do so. The client may have the opportunity in his state to specify his wishes via a state organ donation registry or driver’s license. Further, even if the individual’s driver’s license and advance directive are silent, family members may be able to consent to organ donation on the patient’s behalf when relevant. But making a statement as to the client’s wishes in the advance directive can provide an added level of clarity and put his wishes beyond doubt. The Advance Directive also allows for a greater degree of flexibility to specify the range of purposes for which the client wishes the organs to be used, which organs he would like to donate, etc. Further, if the client has decided against organ donation, it may be advisable to specify that wish in his advance directive to ensure that such preference is complied with.

Pregnancy

For women of childbearing age, consider including a statement as to whether the client’s expressed preferences regarding life-sustaining procedures still apply if she is pregnant at the time. Many clients who otherwise would not wish to receive life-sustaining interventions may wish to be kept alive if pregnant with a reasonable chance of the baby being born healthy. Although thankfully rare, when these situations arise, they can result in difficult decisions for the hospital’s ethics committee balancing the interests of the unborn baby with the expressed wishes of the mother. These difficulties can be mitigated or avoided by a clear statement that the individual wishes to be kept alive for the sake of finishing out the pregnancy. Note that state abortion laws may be interpreted as placing a limitation on the degree of discretion for the mother in some situations. In a situation where abortion would be illegal, physicians may determine that they are not permitted to terminate life support if that would result in the termination of the life of the unborn child.

Sample language: Notwithstanding my previously stated preferences, if I am pregnant, then I direct that all life-sustaining treatment be continued during my pregnancy where there is reasonable hope of my child being born healthy.

Consider Whether Other Documents Should Be Signed in Addition to the Advance Directive

Advance directives frequently contain an authorization to disclose protected medical information to the agents named in the document. But the client may wish for this authorization to be broader. A client with a springing health care power of attorney under the advance directive may wish for certain individuals to have immediate access to medical records. In light of these realities, consider having your client sign a Health Insurance Portability and Accountability Act authorization consenting to the disclosure of protected medical information to trusted individuals such as a spouse, partner, parents, or adult children.

Additionally, a client with a terminal condition may wish to sign a Physician Orders for Scope of Treatment, Physician Orders for Life Sustaining Treatment, Medical Orders for Life Sustaining Treatment, or, if applicable, a health care order about resuscitation, such as Do Not Intubate or Do Not Resuscitate. These forms must be completed with the client’s physician (or, in some states, nurse practitioner or physician assistant), not the client’s lawyer, but you may wish to make the client aware of such forms and recommend speaking with a physician about any additional forms that may be recommended.

Practical Steps Client Should Take after Signing

  1. Provide signed advance directive to health care providers. Encourage your client to provide a copy of the signed advance directive to her primary care physician and any other doctors she sees regularly. This is the best way to ensure that her physician is aware of the document and has ready access, and may also serve as a starting point for a conversation with her primary care provider about other relevant forms. The client (or her physician) may be able to upload the document to an online chart so that it is more easily shared among all the client’s health care providers.
  2. Have a conversation with the named health care agent(s). Even more important than laying out the client’s wishes in the advance directive is ensuring that the client has discussions with her agent(s) to explain what the client’s wishes would be in various circumstances. These conversations can provide more detail than is possible to write into a document and can provide the agent with peace of mind that she is following the client’s specific wishes should the agent ultimately need to make medical decisions on behalf of the client.The client should be sure that the agents know that they are named as decision-makers in the advance directive and know where to locate a copy of the document.
  3. Consider having a conversation with other family members. Especially if the client has made a decision that may be unexpected about who to name as the client’s health care agent (e.g., bypassing a close family member) or has a preference regarding various medical interventions that other family members may not share, it can be helpful to break the news ahead of time so that family members are prepared at the time that the advance directive is utilized. This procedure may help to avoid contention and familial strife when medical decisions are being made in the future and can help to ensure that the client’s wishes are followed.
  4. Revisit the advance directive regularly in order to confirm that it still reflects current wishes. Although an advance directive does not expire, agents and medical professionals may be less certain that a very old document still reflects the client’s current wishes, especially if there have been major life changes in the interim. An old document will not be disregarded merely for being old. In the case of passage of time or changed life circumstances (e.g., a document that names an ex-spouse), however, the issue may have to go to the hospital’s ethics committee to determine whether the document reflects the patient’s current wishes.
  5. Revoke an outdated advance directive and inform anyone aware of the prior document that it has been revoked or superseded. An advance directive generally may be revoked by a written document (including a revocation contained in a superseding advance directive). If the advance directive is revoked, make sure that the client informs her agents, physicians, or others who previously may have been made aware of the old document so that there is no confusion about whether the document continues to be valid.

Conclusion

An advance directive is an important component of a client’s estate plan, and it often does not get the attention that it deserves. Indeed, many clients may care more deeply about the health care decisions made on their behalf during their lifetime than about the disposition of their property after their death. Estate planning attorneys would do well to educate themselves about the issues surrounding advance directives and to initiate careful and thorough conversations with clients about these life-and-death issues.

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