What are Advance Directives?

Advance directives are documents that outline your medical decisions in advance in the event that you cannot communicate them yourself to your family and healthcare providers. For instance, if you are unconscious, seriously ill, in a coma, or suffering from dementia. You are often asked about whether you have any advance directives when you enter the hospital or have been recently diagnosed with a serious medical condition. For many clients, these life-altering documents are an afterthought. Most people only think of such documents when they are asked by a hospital or meeting with their estate planning attorney. But what are they, really? “Advance directive” is a term that refers to several legal documents that provide your legally binding healthcare instructions and decisions (or appoint an agent to make those instructions and decisions) and include a Living Will, a Durable Power of Attorney for Healthcare and in some instances, a Do Not Resuscitate Order (also known as a DNR). Not all of these documents can be prepared by an attorney.

What is a Living Will?

In Texas, living wills are referred to as Directive to Physicians and Family or Surrogates. This document states in writing, in advance of any debilitating condition,  what your instructions are regarding your medical and end-of-life care, for instance, life support. Many states have statutory forms for living wills that are available to the public. These forms may be limited or generic, and not address the specific needs of an

individual. For example, in some cases a patient may wish to refuse particular forms of treatment as opposed to all treatment Accordingly, attorneys can also draft living wills. Living wills describe what type of healthcare treatment you would want if you have an illness that you are not likely to recover from or you are permanently unconscious. Most state forms focus on whether or not the signor wants life support to be continued, withheld, or removed, as well as other end-of-life medical decisions including ventilation, tube feeding, palliative care (comfort care), and pain management. Stating in advance your instructions regarding life support and other medical treatments will ease the burden of leaving these decisions to your loved ones or healthcare agent. In my experiences with spouses, children, and siblings who are often the ones called upon by medical professionals to make these decisions for a loved one, the existence of a living will or Directive to Physicians and Family or Surrogates is of tremendous relief and helps eliminate or reduce the fear of regrets for heart-breaking decisions.  In most states, absent a living will, your healthcare agent or guardian will make all medical decisions regarding your medical treatment if you have not documented them in writing in advance.

What is a Medical Power of Attorney?

In some states, medical powers of attorney are titled as Healthcare Powers of Attorney. A medical power of attorney allows you to appoint a healthcare agent to make medical decisions for you when you are no longer able to do so yourself because you are no longer conscious, or you have advanced dementia. Making the decision to appoint someone to make such personal decisions for you can be difficult. It is a good idea to speak in advance with the person you have decided you would like to be your healthcare agent. Not only should your appointee be notified that you intend to appoint them as your agent, but you should converse with the appointee about any existing medical decisions you are aware of and your instructions regarding how you would like to be treated medically for such conditions. The job of your healthcare agent is to communicate with your healthcare provider and instruct them what you have advised you want regarding medical treatment when you are no longer able to do so. If your agent has not been informed by you about a specific medical scenario then the agent will make the decision for you. Many states have statutory forms for medical powers of attorney that are available to the public. Again, because you may want to supplement or alter the generic form, attorneys can also draft medical powers of attorney.

What is a DNR?

A DNR is a Do Not Resuscitate Order. A DNR is also a form of advance directive. This is a legal document that patients with a terminal medical condition get from their medical provider. Patients with a terminal medical condition may choose to instruct hospital or emergency medical providers that they do not want to be resuscitated in an emergency medical situation. For instance, your heart stops, or you stop breathing. A DNR will instruct the hospital or emergency medical provider to stand aside and take no life-saving measures in an emergency situation. Physicians will put the DNR in the patient’s medical records. An attorney cannot assist with the drafting or preparation of a DNR. In most states, only a medical provider can assist a patient with this document, and it often requires the signature of the physician. A DNR may trump an existing advance directive or instructions of a medical power of attorney. It is most often used where a Directive to Physician or medical power of attorney does not exist. However, a discussion may occur at a hospital upon admittance that alters the patient’s desires.  In addition, medical administrators sometimes confuse Directives to Physicians with DNRs as many Directives contain language similar to DNR orders.  So it is good practice to have both a medical power of attorney and a Directive to Physicians, provide both to your medical agent, and make sure your medical agent can communicate with the medical providers about existing directives.

You should consider signing advance directives now even if your health is good. Unfortunately, accidents happen all the time that can eliminate the ability of someone to make these decisions for themselves. A qualified estate planning attorney can help guide you through the process and prepare appropriate documents that make your wishes clear to those who may become responsible for your medical decisions.

Joy Eckelkamp, Senior Counsel at Rapp and Krock, PC, is a Certified Elder Law Attorney.