September 12, 2011
Authored by: Brent Howard and Cynthia D. Kennedy
A doctor must obtain informed consent from you before providing medical care or performing any type of medical treatment. If you are unable to communicate your wishes, state laws determine with whom the doctor should consult regarding these decisions and the decisions would be made with the medical preferences of the family member(s) and the doctor. However, you can direct who should make these decisions and establish your preference with an advance directive for healthcare.
An advance directive is a document authorized by state law that combines a living will with a healthcare power of attorney. This document is typically referred to as an advance directive because it allows you to provide your directions in advance of your incapacity, but the exact name of the document will vary from state to state. Most people have heard of a living will, which allows you to state end-of-life treatment preferences when you are unable to express your wishes. A healthcare power of attorney is a lesser known document often prepared at the same time as a living will, which allows you to name a trusted person to make medical treatment decisions when you are incapacitated, and not able to communicate with your healthcare providers.
If you are over 18, you should prepare an advance directive which allows you to accomplish any one or more of the following: (1) tell your doctor and other healthcare providers who they should communicate with in the event of your incapacity (this “agent” is typically authorized as your personal representative under the Health Insurance Portability and Accountability Act of 1996 “HIPAA” and will have the same access to your medical records as if they were you); (2) declare your wishes for end-of-life care (this provides guidance to your agent, but your agent is not required to follow them); (3) notify the court the person that you wish to serve as your guardian if one is needed; and (4) declare your funeral wishes upon your death along with your views on organ donation and other post mortem issues.
The most important decision is the selection of your agent. Your agent should be someone who is able and willing to communicate with your doctors on your behalf and whom you trust to make medical decisions for you. Your agent may be called upon to make decisions regarding the best surgical procedure or medical treatment during a medical situation in which you are expected to recover or to make decisions regarding end-of-life care. You should name at least one if not two successor agents who can serve as your agent if your first choice is unable to serve, and you should discuss your relevant medical history, your views regarding medical care and your views regarding end-of-life treatment, which you have declared on your advance directive, with both your agent and successor agent(s).
You can typically find your state’s standard advance directive form (or healthcare power of attorney and living will) by visiting www.caringinfo.org, or your state’s health department website, or your local hospice program website. You should carefully read the instructions for completing and signing the form(s). Most states require the advance directive be signed and witnessed by one or more unrelated persons and some states also require it to be notarized. If you have any questions or concerns regarding the form(s), you should consult your attorney.
Once completed and properly signed, you should keep the original with your other important papers, and provide a copy to your doctor and other healthcare providers. In most cases it is appropriate to provide a copy to your agent, typically if the agent is your spouse, parent or adult child. However, if there is a chance you may change your agent in the future, you may wish to only inform the agent that your doctor has a copy and where you keep your copy. This way, you can prepare a new advance directive in the future and change agents without having to ask your former agent for his/her copy of the old advance directive.