Advance Directives

The Health Care Decisions Law introduces the term "advance health care directive" or simply "advance directive" to refer both to a power of attorney for health care and any individual health care instruction.  A power of attorney for health care is a written instrument designating an agent to make health care decisions for the principal, whereas an individual health care instruction is a patient's written or oral direction concerning a health care decision.  As may be done in the Advance Health Care Directive in this Workbook, a single document may include both a power of attorney for health care and one or more individual health care instructions.

Although the term "advance directive" may be used to refer to an oral health care instruction under the Health Care Decisions Law, it is generally used to refer to a power of attorney for health care that includes one or more written health care instructions. Many powers of attorney for health care executed prior to July 1, 2000, will also contain individual health care instructions.

Terminology

Although much of the traditional terminology applicable to powers of attorney will continue to be used with respect to health care powers of attorney, the Health Care Decisions Law introduces terminology unique to the area of health care and health care agency relationships.  For example, while an adult executing a power of attorney for health care may still be referred to as the "principal", the broader term "patient" is used to refer to any adult whose health care is under consideration, and refers both to the principal under a power of attorney for health care and to any adult who has given a written or oral individual health care instruction.  Other basic terms include "agent," which refers to an individual designated in a power of attorney for health care to make a health care decision for the principal, whether the agent is referred to in the power of attorney as an agent or as an attorney in fact and "health care," which means any care, treatment, service, or procedure to maintain, diagnose, or "otherwise affect" a patient's physical or mental condition.

Breadth and Purpose

The Health Care Decisions Law addresses a number of health care issues that individuals and their attorneys have encountered in recent years.  These range from defining artificial nutrition and hydration as forms of health care to defining the rights and obligations of a health care provider who refuses to comply with a lawful health care instruction, either because the provider has ethical objections to the instruction or because the provider regards the instructed care as medically ineffective.

The Health Care Decisions Law also contains a statement of legislative findings in its general provisions, which is generally consistent with prior statutory and case law.  The findings continue the characterization of an individual's power to control his or her own health care, including the right to have life-sustaining treatment withheld or withdrawn, as a "fundamental right".  The legislative findings also state that modern medical technology has made possible the artificial prolongation of human life beyond "natural limits" and that continued health care that does not improve an individual's prognosis for recovery may violate the individual's dignity while providing nothing "medically necessary or beneficial".  The Health Care Decisions Law also contains an express finding that in the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life sustaining treatment.

Health Care Surrogates

The Health Care Decisions Law also recognizes and enhances the patient's right to have medical decisions made by a health care surrogate.  A patient may designate a health care surrogate orally by telling the supervising health care provider the name of a surrogate to make health care decisions for the patient.  That designation must then be entered in the patient's chart.  The designation is effective only during that course of treatment, illness or hospitalization during which it is made.  A patient also has the right to disqualify another person from acting as the patient's surrogate.

Scope of Powers

You have the right to give instructions about your own health care.  You also have the right to name someone else to make health care decisions for you.  The directive provided by us lets you do either or both of these things.  It also lets you express your wishes regarding your personal care, donation of organs, and the designation of your primary physician. 

Part 1 of this form is a power of attorney for health care.  Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable.  You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you.  (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a co‑worker).

Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you and all decisions regarding your personal care.  You do not need to limit the authority of your agent if you wish to rely on your agent for all health care decisions and personal care decisions that may have to be made.  If you choose not to limit the authority of your agent, your agent will have the right to:

(a)  Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.

(b)  Select or disapprove health care providers and institutions.

(c)  Approve or disapprove diagnostic tests, surgical procedures, and programs of medication.

(d)  Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.

(e)  Make anatomical gifts, authorize an autopsy, and direct disposition of remains.

(f)  Make personal care decisions, including determining where you will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment for you.

General Scope of Authority Granted

The statement of the Health Care Directive regarding the scope of authority you would be giving is as follows:

When Does the Health Directive Take Effect?

You can provide either that your health directive will take effect immediately or only after your primary physician has determined that you are unable to make these decisions for yourself.

Ordinarily we recommend the latter choice as a precaution to preserve your power to make your own decisions.  There may be situations where the immediate grant of power makes more sense.  For example, if you are in an accident far from home, your primary physician may not be able to make the needed determination and this could delay the ability of your health surrogate to make decisions for you.

Anatomical Gifts, Autopsies, Disposal of Remains

In your Health Care Directive you can provide for what happens to your body after your death.  This includes an option giving your health care surrogate the power to make gifts of your body parts (all, none, or specific parts); the power to authorize an autopsy; and the power to dispose of your remains, including giving funeral directions.

Nomination of Conservator of Person

The use of a Health Care Directive is a means of avoiding the necessity for someone to go to court on your behalf to gain the authority to make health care decisions for you.  If no health care directive existed, such a person would ask the court to appoint them as conservator of your person.

Even when you have a health care directive, it sometimes happens that a well-meaning person may ask the court for appointment as your conservator if they feel the health care surrogate you named in your health care directive is either not following your instructions or is not acting on your behalf in some way.  In such an event, we recommend that you nominate someone to be your conservator if the court is going to appoint one.  While the court does not have to follow your nomination, it often does.

Usually you would nominate the same person that you selected as your health surrogate, but you may wish to nominate someone else.  You can also name anyone who you do not wish to be able to apply to the court for appointment as your conservator or to petition the court regarding your health care directive.

Health Care Instructions

There are two primary choices of health care instructions used by most people.  You can select one of them for inclusion in your health care directive:

(a)        Choice Not To Prolong Life

 I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR

 (b)    Choice To Prolong Life

 I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.

Other Types of Instructions

Another commonly used instruction is:

RELIEF FROM PAIN:  I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death.

Other instructions may be added to reflect your specific wishes.

Primary Physician

You will be asked to provide the name, address and telephone number of your primary physician and, if you choose, an alternate primary physician. Select the physician who is most familiar with you and your health needs.

You do not need to name a primary physician.  The advantage to doing so is that it gives you the ability to name the physician who has  the power for purposes of the health directive to determine whether you can make your own decisions or not.  If you do not designate your primary physician, that decision may be left to a physician who is unknown to you.  The disadvantage is that if you do designate the primary physician (and alternate), you would have to change your health directive if you change physicians.  Those using HMO’s without a primary physician may not even be able to make this designation.