Advance Directives

What are "advance directives?"
Advance directives are instructions to your family, medical providers and others about what kind of medical and nursing care you would want (or not want) if you were unable to give instructions. One common misuse of the term is to refer to advance directives as "advanced" directives; the correct term makes it clear that they are documents you prepare and sign in advance of the time you may need to give direction.

What is a "living will?"
A living will is simply one type of advance directives. A living will gives specific or general instructions as to the kinds of care to provide or withhold, and the type of conditions in which it should apply. Some states have specific requirements for living wills to be valid; Arizona's requirements are very simple.

What is a "health care power of attorney?"
A health care power of attorney is different from a living will, because it names one or more persons to make medical decisions for the signer in the event of incapacity. While the living will gives instructions about care choices, the health care power of attorney empowers an individual to sign consents, discuss health care issues with the care team, secure second medical opinions, and similar actions. As with living wills, it is very easy to comply with Arizona law in signing a health care power of attorney.

What is a health care proxy?
Some states (like New York) use the term "health care proxy" to describe a health care power of attorney. While state laws on advance directives differ, there is no important difference between the concept of a health care proxy and a health care power of attorney.

Which document should I sign--a living will or a health care power of attorney?
Most people should sign both documents. A handful of states formally recognize only one or the other kind of document, but 46 states expressly permit both kinds. Where it is feasible to sign both, the two types of documents complement one another nicely. One (the health care power of attorney) appoints an agent to make decisions, while the other (the living will) directs the agent as to what decisions he or she should make.

Must my health care power of attorney and living will be separate documents?
Not in Arizona, at least. It is common to combine the two documents into one, allowing a single signature to satisfy the formal requirements and ensuring that health care providers see both documents at the same time.

What are the requirements for signing an advance directive?
Rules for signing advance directives vary among the states. In Arizona they are quite simple and straightforward. An advance directive must be signed by a competent adult, must clearly indicate that it is supposed to be an advance directive, and must be witnessed by at least one person. There is no requirement that an advance directive be notarized (in Arizona, at least), and notarization does not make the document more effective or powerful. Because of limitations on who can witness advance directives, it is advisable to have two witnesses (though usually a single witness will suffice), and not to use health care providers as witnesses. Family members can witness advance directives, but there must be two witnesses if either is a family member. It is important to note that these rules are for Arizona; other states may vary, and a directive executed in another state using Arizona's requirements may be invalid.

Are there advance directives other than the living will and health care power of attorney?
Yes, at least in Arizona. State law in Arizona recognizes two other kinds of advance directives: a mental health care power of attorney and a "pre-hospital medical care directive."

What is a mental health care power of attorney?
As the name itself suggests, a mental health care power of attorney gives the agent the power to consent to mental health treatment in an inpatient setting. This can be important, especially in cases of advancing dementia--sometimes demented patients become combative or display symptoms of mental illness and require stabilization in a secure setting. Although a health care power of attorney generally conveys all authority to the agent to make medical decisions, placement in a mental health treatment facility usually requires either the consent of the patient, a court order or a mental health care power of attorney.

If a patient is psychotic, won't he or she just revoke a mental health care power of attorney?
That can be a problem. To avoid that result, a mental health care power of attorney can be made irrevocable.

What is a "pre-hospital medical care directive?"
One problem that arises often is in dealing with the care of the terminally ill. Rather than risk the possibility of administering CPR (cardiopulmonary resuscitation) to a terminally ill patient, most hospitals have adopted a protocol for entry of DNR ("do not resuscitate") orders. Arizona, as it often does, takes a slightly different approach. In Arizona patients can effectively direct entry of their own DNR orders by signing a pre-hospital medical care directive. It directs paramedics, emergency medical technicians and emergency room physicians not to attempt resuscitation.

Are there any specific requirements for a pre-hospital medical care directive?
Yes. Unlike all the other advance directives recognized in Arizona, a pre-hospital medical care directive must be in precisely the form specified by Arizona law. It must be orange in color, and either letter or wallet size. It must contain precise language, include a picture or physical description of the patient, be signed by the patient or his or her guardian or health care agent, and be witnessed, It must also be signed by a health care provider, who certifies that the patient has been told that refusing resuscitation can lead to death. Because the directive must be on orange paper, it is commonly referred to in Arizona as the "orange form."

Who would sign a pre-hospital medical care directive?
An "orange form" can be signed by anyone who does not wish to be resuscitated. It was designed by the Arizona legislature especially to provide some comfort to hospice and other terminally ill patients and their families, but there is no requirement that the patient be terminally ill.

Where can I get advance directives forms to sign?
Federal law requires every community to have an area agency on aging, and your local agency is an excellent resource for advance directives. In Tucson, Arizona, the area agency is Pima Council on Aging, which can be reached at 790-7262 or www.pcoa.org. Another good source is a local hospital; most provide free copies of advance directive forms upon request. Stationery and book stores often carry commercial products for preparing advance directives, but they tend to be relatively expensive (and not necessarily any better than the free versions available from area agencies on aging and hospitals). Software packages may provide assistance with advance directives, though care must be taken to ensure that the product complies with local law. One excellent internet resource for advance directives is the Partnership for Caring, a New York-based organization that provides online versions of advance directives for every state.

Do I need to hire a lawyer to prepare an advance directive?
No.

What are the correct titles for the person who signs an advance directive and the person(s) he or she names in the documents?
The person signing an advance directive is usually referred to as the principal or the patient. The person to whom he or she gives a health care power of attorney is called the health care agent or the attorney-in-fact. Some people incorrectly refer to the health care agent as the "health care power of attorney," but that is the name of the document itself, not the person given authority.

Can I name more than one health care agent?
Yes, at least in Arizona (and in most--perhaps all--other states). In fact, it is probably a good idea to name at least one alternate agent. Naming more than one agent to act at a time may not be advisable, as it may slow down the provision of health care unless your advance directive makes it clear that any one named agent can act without having to secure approval from any of the other agents.

Who should be my health care agent?
That is, of course, a very personal question. Assuming that several people are equally good candidates, it may be useful to have your health care agent geographically closer at hand, since it may be necessary for him or her to personally assess your condition and prognosis. It should be obvious that your agent should be aware of your personal wishes, and it is of course better if he or she agrees with your choices.

Can I revoke my advance directives?
Yes, although if you have made your mental health care power of attorney irrevocable you will not be able to revoke it when you need psychiatric treatment. Remember that this information is based on Arizona law only, and you should check the law of your state if you do not live in Arizona. Revocation of an advance directive is actually very easy in Arizona--it does not require you to even sign a form. Simply telling someone that you revoke your advance directives is sufficient in Arizona, even if you are no longer mentally competent.

What if no advance directive has been signed?
Arizona, like most (but not all) states, provides a mechanism for a family member or concerned friend to make medical decisions for you if you become incapacitated without having signed an advance directive. The Arizona law makes it clear that those individuals have power to act in a specified priority: spouse, then child or children, then parent(s), then "domestic partner," then sibling(s), then concerned friend. If you would like someone with lower priority to act, you must sign a health care (and/or mental health care) power of attorney--a lower-priority person who insists that you wanted to give him or her authority will not have that authority unless higher-priority persons acquiesce. There is one other important limitation on the so-called "statutory surrogates"--individuals named on this list (as opposed to health care agents and guardians of the person) do NOT have the power to authorize withholding or withdrawal of artificially provided but life sustaining food and fluids.
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