Advance Directives for Health Care FAQs
What if medical personnel refuse to carry out an instruction asked for in the advance directive?
This is one reason for involving an attorney when preparing the documents. If the documents are executed properly and contain healthcare instructions that are legal in your state, medical personnel are beholden to comply. Speaking with your loved one’s attending physician in advance will help get everyone on the same page, so there are no surprises when the time comes. If you know in advance that the physician disagrees with your relative’s wishes, you’ll have time to look for another doctor who’s a better fit.
It’s also a good idea to find out the administrative policy of your loved one’s care facility regarding advance directives. To avoid lawsuits, some hospitals have standing policies for their caregivers to ignore advance directives and perform life-sustaining treatments until the case can be reviewed by a hospital ethics board.
So be proactive about advance directives, especially those that contradict the healthcare providers’ mandate to save lives using all available treatments. If your loved one is being treated in a hospital or other healthcare institution, make sure that the following steps have been taken.
- All nurses and physicians have copies of your family member’s living will and DNR orders, if applicable.
- The appropriate hospital forms that reflect her life support wishes are filled out and filed with the proper departments.
- The DNR orders are correctly posted in her room and/or on her medical chart.
Can someone ask to end life support in an advance directive? Under what conditions?
Yes. One purpose of the advance directive is to give instructions for when to apply or withdraw life support. In most states, both a terminal diagnosis and a doctor’s assessment of the futility of treatment are required. Beyond that, instructions from the patient in a living will and/or the decision of the patient’s healthcare proxy determine whether and when to remove life support.
Can someone ask for assisted suicide in an advance directive?
Do you need both a living will and a power of attorney for health care?
A good advance directive contains both instructions for life-sustaining treatments and assignment of a healthcare proxy. It varies from state to state whether these appear in two separate documents or a single comprehensive one, as
the American Bar Association recommends. You or your attorney should become familiar with the laws of your state before preparing an advance directive.
What’s the difference between a health care power of attorney and a regular power of attorney?
Most people are familiar with the power of attorney that assigns a representative to make financial decisions for someone who’s become mentally incompetent. The power of attorney for health care assigns a representative to specifically make medical decisions for the person. The two jobs may be covered by a single person or by two people.
What happens if my loved one is on life support and does not have an advance directive?
Depending on the particular state and hospital policy, the final decision about withdrawing or maintaining life support may legally rest with the doctor or hospital, or it may rest with the nearest kin. Even if the family and doctors agree on a course of action, if no one knows what the patient’s wishes were, decisions about life support can be agonizing. It is not unusual, however, for family members to challenge doctors and each other about who is responsible and what should be done. Disagreements may result in court proceedings, as the nation saw played out in the Terry Schiavo case. Even if the patient had spoken his wishes to a loved one, if the rest of the family and/or the medical staff were not made aware of those wishes while the patient was competent, they might be challenged.
If I’m a healthcare proxy, how do I make decisions about treatments and issues not specifically covered in the advance directive?
You must use your best judgment based on what you understand about the wishes of your loved one. Clearly, the more the two of you have discussed various eventualities, the more prepared you will be for navigating gray areas and unpredictable circumstances. If you fill out the
Care Companion Advance Planning Tool Kit together, these decisions could be easier to make.
Does a healthcare proxy have to be a family member?
Can the choice of a healthcare proxy be challenged?
Yes, but generally only by proving to a judge that the proxy is incapable of serving or is not acting in the patient’s best interests. The power of attorney for health care document should name one or more backup choices for proxy in case the first choice is unwilling or unable to serve.
Can a decision made by a healthcare proxy be challenged?
Yes, if a family member or medical professional believes the decision is not adhering to the patient’s advance wishes. Again, if such disagreements cannot be resolved, the argument usually ends up in court. Depending on the circumstances, if the challenging party has only oral evidence on hand, the written advance directive instructions may take precedence.
Can you prepare an advance directive for health care without an attorney?
Yes, and there are
resources that can help you prepare the documents for your state. It is by far better to make the documents yourself than not to do them at all. However, an accurate and legally binding document is the best way to ensure that your advance wishes are met, and working with an attorney who specializes in estate planning or elder law will certainly give you that, as well as peace of mind. Involving an attorney in the field is especially recommended for people with children from a past marriage and same-sex couples, as these are the situations where most challenges arise. If you cannot afford a lawyer, low-income assistance may be available to you.
Here are some resources for finding legal representation.