Take Control of Your Future with a Health Care Power of Attorney and Living Will
Written by Bogutz and Gordon
When we saw that National Health Care Decisions Day had come and gone (it was April 16), we were sorry to have missed it, but also wondered: “Why just one day?”
National Health Care Decisions Day (NHDD) is an annual public relations event designed to bring attention to health care powers of attorney, aka health care proxies, and living wills, aka advance directives. These are two of the four documents we recommend that every adult have (the other two are a will and financial power of attorney), and we believe not only is every day a good day to talk about them but also that it’s better if people spend more than one day thinking about what these very important documents should say.
The health care power of attorney (HCPOA) designates a person to act as your agent in the event you cannot communicate your own medical decisions. The agent you name steps into your shoes and speaks for you as best he or she can. Note that this document comes into effect ONLY if you are unable to make or communicate decisions concerning your care; you continue to make your own decisions as long as you are able. The living will details your preferences for care – and when care should cease – at the end of life, and your agent uses it to guide his or her decisions.
It can be difficult to think about being unable to communicate medical preferences, especially when you are healthy and don’t expect to fall ill anytime soon. But circumstances change, and it’s a gift to your family members and loved ones to give them the tools needed to be able to determine and follow your wishes. According to a Pew study, most Americans have thought about end-of-life treatment options, but only about a third have a living will.
Arizona law also provides for a mental health care power of attorney, which grants your agent the authority to admit you into a “level one” psychiatric treatment facility, which is a psychiatric hospital or a psychiatric ward in a regular hospital. These are particularly useful when there is a diagnosis such as bipolar disorder or Alzheimer’s disease that may require mental health care treatment. Having a mental health care power of attorney means your loved ones would not have to seek court approval to get you such high-level treatment. This power is often incorporated into the regular HCPOA and living will in a combined document.
These documents are governed by state law, and, to be legally effective, they must conform to the statutory rules. In Arizona, the HCPOA must be in writing, signed, and witnessed or notarized. If witnessed, the witness cannot be a family member, beneficiary of your estate, your named agent, or medical professional providing treatment. Arizona includes samples in statutes (HCPOA and Living Will). The statutory forms will suffice, as will one of the many basic documents you can find all over the Internet, but many people prefer to spell out in more detail the agent’s responsibilities and their own specific treatment preferences. Any estate planning law firm will have more detailed HCPOAs and living wills as part of a basic estate planning package or as stand-alone documents. At Bogutz & Gordon, our forms are constantly evolving; as legal or practical issues arise, the forms are adjusted to provide maximum clarity and minimum confusion for those who will actually be implementing them. Each client can then customize the language to suit his or her specific family or health situation.
If you end up unable to communicate your wishes and don’t have a health care agent, doctors will turn to the following people, in this order, to find someone who is able to speak for you: a spouse, unless you are legally separated; an adult child, and, if more than one, a majority of those available; your parent; your domestic partner (if you are not married); a sibling; and then a close friend. If none of these are available, a medical professional may consult with a health provider ethics committee or another physician. It should be noted that these “statutory surrogates” cannot authorize the withholding or withdrawal of artificially provided food and fluids, but health care agents can.
If your choice of agent differs from those above, it is crucial that you execute a power of attorney to ensure your chosen individual has the ability to act for you.
It also is crucial for each client to take the time needed to carefully consider how these documents may be used.
When it comes to the HCPOA, think through who may be the appropriate agent. Many married couples name the other spouse first, then a child or several children as alternates. Consider whether your spouse is really the appropriate person. Also consider the practical implications of naming several agents, especially if they are not geographically close to you. In addition, do you want them to make decisions together or would you like them to be able to act independently? Other considerations: Does the agent have the ability to deal with medical professionals effectively? Will he or she strongly advocate for you, and be able to handle the potential stress and time commitment? Do you believe he or she can separate his or her own emotions to carry out your wishes? Does he or she know you well enough to act in a situation that is unforeseen? It should be someone you know well and who knows you. After all, you are trusting this person with your life.
As for the living will, it requires examining your values and what is most important to you. Do you have strong religious convictions that influence end-of-life care? Is the ability to interact with others very important to you? These questions can be difficult to answer, and there are a multitude of resources that help walk you through these issues. And remember: your wishes can change over time, and you can always change your mind by executing new documents. In fact, many people, after witnessing the illness or death of a loved one, change their own living wills because they have grown to have a better sense of what they really want, or change their named agents after seeing how their family members handle various life events.
Once you have made these decisions, your work does not stop there. Talk to your agent. Because no living will can cover every single scenario that may come up, your agent needs to know your values and preferences, your thoughts about end-of-life care, and your spiritual or religious beliefs. Show him or her the power of attorney and living will, read the documents together, and if either of you has questions, contact an attorney or other expert. Make sure the agent understands his or her responsibilities if the document ever needs to be used, and elaborate on treatments mentioned in the document, so the agent can be fully prepared if something occurs that is not mentioned.
Here are some helpful resources:
The Arizona Attorney General’s guide: https://www.azag.gov/sites/default/files/sites/all/docs/lifecare/LCP_Packet_fillable.pdf
American Bar Association toolkit: http://www.americanbar.org/content/dam/aba/uncategorized/2011/2011_aging_bk_consumer_tool_kit_bk.authcheckdam.pdf
Caring Connections: http://www.caringinfo.org/i4a/pages/index.cfm?pageid=1
Compassion & Choices: http://www.compassionandchoices.org/
Project Grace: http://www.projectgrace.org/
Caring Conversations pamphlet: http://www.practicalbioethics.org/documents/caring-conversations/Caring-Conversations.pdf
National Resource Center on Psychiatric Advance Directives: http://www.nrc-pad.org/
Among the many books out there, this one comes highly recommended: A Better Way of Dying: How to Make the Best Choices at the End of Life, Jeanne Fitzpatrick, M.D. & Eileen M. Fitzpatrick, J.D.