Welcome to the Living Trust Network's frequently-asked questions (FAQs) about Advance Directives.
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What are advance health care directives?
What kind of health care instructions are there?
Am I required to have all of these?
What is a living will?
Can I decide what treatment I want under a living will?
What is artificial nutrition and hydration?
What is a durable power of attorney for health care?
Who should be my agent for health care?
Can I name more than one agent to act for me?
What is a pre-designation of conservator?
Who should I pre-designate as my conservator?
If I want to donate my organs, what should I do?
How do I make these health care instructions?
Where should I store these documents?
Will these documents be valid in other states?
Will doctors / hospitals honor my wishes regarding my health care?
How long will my advance directives last?
Must a lawyer create my advance directives?
Q: What are advance health care directives?
A: Advance health care directives are nothing more than written instructions to your loved ones and others about the type of medical treatment and health care you'd like to receive if you're unable to communicate directly with your health care providers. Because these statements are made before the medical treatment and health care is actually needed, they are often referred to as "advance directives." They are often referred to also as "health care instructions."
Q: What kind of health care instructions are there?
A: There are two kinds. The first is called a "living will." The second is called a "durable power of attorney for health care" or a "health care proxy." Many states authorize others as well; for example, the making of anatomical gifts, the pre-designation of a conservator in the event of future incapacity, and the designation of a custodian for bodily remains.
Q: Am I required to have all of these?
A: No. You are not required to have any of these. But, one or more of them is a good way to insure that your wishes are known if you’re ever in that situation. If your wishes are known, then your medical service providers will know what procedures to follow and your family and friends will be spared the agony of second-guessing what you would have wanted.
Q: What is a living will?
A: A living will is a legal document that states your preferences for medical treatment if you are terminally ill or permanently unconscious and unable to actively take part in making decisions for your own life. In that case, the living will states that you want to be allowed to die and not be kept alive through life support systems.
The term "terminally ill" generally means that you have an incurable or irreversible medical condition that will result in death within a relatively short period of time. The term "permanently unconscious" generally means that you are in a permanent coma or a persistent vegetative state, which is an irreversible condition in which you are not aware of yourself or your environment and show no response to the environment.
Under a living will, you can state whether you want - or don’t want - certain life-sustaining procedures, including artificial respiration, cardiopulmonary resuscitation, and artificial means of providing nutrition and hydration.
Q: Can I decide what treatment I want under a living will?
A: Yes. That decision is entirely up to you. But, it’s an important decision, so most professionals recommend that you discuss the available options with your loved ones and your professional advisors. Some people don’t feel comfortable making a living will, while many others do.
Q: What is artificial nutrition and hydration?
A: Artificial nutrition and hydration refers to the use of artificial means to feed and hydrate a person who is not able to eat and drink on his own. It generally includes giving food and water through an intravenous catheter (commonly called an "IV") or through a nasogastric tube.
Q: What is a durable power of attorney for health care?
A: A "durable power of attorney for health care" is a legal document in which you name another person as your agent to make health care decisions for you. A durable power of attorney for health care is exactly the same as any other durable power of attorney except that it pertains only to your health care, not financial matters. You can include instructions about the types of medical treatments you want - or don’t want. The following are a few examples of the types of things you can include: Your personal goals, values and preferences; the types of medical treatment you would want - or don’t want; how you want your agent to make decisions; where you want to receive care; instructions about artificial nutrition and hydration; mental health treatments; organ donations; funeral arrangements; and whom you would like to have as a guardian or conservator of your person if one is to be appointed for you. You can be as general or as specific as you like, because it is your directive to your designated agent.
Q: Who should be my agent for health care?
A: This is a very important question. Whomever you decide to name as your agent under your durable power of attorney for health care, it should be someone you know very well. It should also be someone you respect and someone who’s judgment you value. Moreover, the person you name as your agent should be somewhat knowledgeable about medical issues, although it’s not necessary that this person have any medical training. This person should also have a good understanding of who you are and what your values and feelings are. After all, this person could be stepping into your shoes to make the very difficult medical decisions that you would have to make for yourself if you were able to do so. Most professionals recommend that you name only one person to serve as your health care agent. Even so, you should also name an alternate in case your first choice is unable or unwilling to act for you. Many individuals also have two or more children and they don’t want to name just one child as their health care agent because it may slight the others. If only one of your children lives close to you or if only one of your children is able to act for you, then name just that one as your health care agent, with one or more of the others as alternates. If that is not the case, then you should consider naming all of them as your health care agents in order to avoid slighting any one of them. Of course, these are issues that many people struggle with. But, most people agree that it’s better to have the struggle before you actually need someone to make these health care decisions for you.
Q: Can I name more than one agent to act for me?
A: Yes. As stated above, you can appoint as many agents as you would like. However, if you appoint more than one agent, then you should specify whether each agent can act separately or whether they all must act collectively. There are advantages and disadvantages to both forms of appointment. Requiring your agents to act collectively can safeguard the soundness of their decisions, but it may be very difficult for all of them to agree on every decision. If any one of them can make decisions for you, that may be much easier to get things done, but it may also cause serious disagreements among them if they are not told in advance. Another option is to appoint only one agent, with another named as an alternate in case the first named agent is unable to act for you.
Q: What is a pre-designation of conservator?
A: A pre-designation of conservator is simply a statement indicating whom you would want to serve as the guardian or conservator of your person in the event that a guardian or conservator is to be appointed for you. If you have a durable power of attorney for both financial and health care purposes, it is less likely that a court will appoint a guardian or conservator for you. Still, there is always the possibility that someone may petition the courts to have a guardian or conservator appointed for you. In that case, a pre-designation of conservator will tell the court your preferences if you are not able to speak for yourself.
Q: Who should I pre-designate as my conservator?
A: This decision is just as important as selecting someone to act as your agent under a durable power of attorney for health care. In fact, a guardian or conservator will be entrusted with pretty much the same powers and authority that your agent was given. There are differences, however. For example, an agent under a durable power of attorney for health care is concerned only with medical decisions, whereas a guardian or conservator is concerned with all of your personal affairs. The person or persons you pre-designate as your guardian or conservator for future incapacity may be the same person or persons you name as your agent under a durable power of attorney for health care and a durable power of attorney for financial matters. In fact, many people name the same people to serve as successor trustees of their living trusts and the administrators of their estates. If you have faith and trust in someone and you believe they will act in your best interest, then they are the logical persons to appoint in all of those very important positions. In many cases, those same people will also be the beneficiaries under your will or living trust. Those who are without loving family members have a more difficult time making these difficult decisions.
Q: If I want to donate my organs, what should I do?
A: You may put a statement to that effect in your durable power of attorney for health care. You should also check with your state to determine whether it has a statewide organ donor system in place. Some states provide for notification of organ donors on its driver’s licenses. You should also notify your spouse, family, friends and personal physician of your intentions regarding organ donations.
Q: How do I make these health care instructions?
A: There are forms available for this purpose. Some states even have specimen forms that are available free of charge. But, you don’t have to use a form if you don’t want to. You can write out your wishes on a separate piece of paper, or you can get a sample form from the library or from the internet - without having to pay a fee. Most attorneys provide these forms as well and, generally, are included as part of your overall estate planning at no additional charge.
There are some legal requirements, though, that you must comply with in order to create a legally binding document: You must be at least 18 years of age at the time you sign the document. The document must be in writing. It must state your name. It must be signed by you or by someone authorized to sign for you. Your signature must be witnessed by two witnesses and your signature must be notarized by a notary public. It should include the name, address and relationship to you of each person you designate as your agent for health care decisions and, if you designate more than one, whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately. If you wish to make such a pre-designation of a guardian or conservator for future incapacity, it should include the name, address and relationship to you of each person you pre-designate as your guardian or conservator. If you designate more than one person, you should indicate whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately.
Q: Where should I store these documents?
A: You should inform your family members, your attorney, your personal physician, and each person you have designated as either your health care agent or your guardian or conservator for future incapacity. In fact, it's advisable that you discuss these important decisions with these people before you even sign the documents.
You should keep the originals in a safe place, particularly one that is free of any potential water or fire damage. It is also a good idea to give copies of these documents to the people who are most likely to need this information when the time comes, particularly your attorney and your personal physician. In fact, you should give a copy to your physician so that it can be placed in your medical file. Another good idea is to have your documents on file with a national registry, such as DocuBank®. When you store your documents with a registry, such as DocuBank®, you receive a customized emergency card with your information printed on it, including a toll-free telephone number to call for copies of these documents. If you are hospitalized anywhere in the world, the hospital staff will obtain your documents by fax directly from the registry. DocuBank® has an automated system that faxes your documents to the hospital or anywhere they're needed immediately at any time, day or night, every day, from anywhere around the world. For more information on DocuBank’s services, please click here.
Q: Will these documents be valid in other states?
A: Yes, these documents are valid in all 50 states as long as they are valid in the state in which they are executed. However, if you move permanently to another state, it’s a good idea to review these documents to insure that they fully comply with that state’s requirements.
Q: Will doctors /hospitals honor my wishes regarding my health care?
A: The laws of most states require that medical service providers honor your wishes regarding medical care and treatment. However, conflicts sometimes occur when there is a lack of communication between medical service providers and family members. This is another reason why you should communicate your wishes to your family members, your attorney and your personal physician in addition to stating your wishes in the form of health care instructions. In most states, also, your health care agent has the authority to seek medical service providers who will comply with your wishes.
Q: How long will my advance directives last?
A: There is no time limit for these documents. Generally, they will last until you change them or terminate them. You may change them at any time and from time to time by simply signing new documents. It is always a good idea to destroy your old documents so that they aren’t confused with your new ones. You may also terminate them at any time by:
Signing a written statement to that effect.
Destroying the original and all copies.
Telling at least two people that you are terminating them.
Writing new instructions.
Q: Must a lawyer create my advance directives?
A: No. But, if you have any questions about any of these documents, particularly the people you should appoint as your health care agent, then it is advisable that you consult with someone who is knowledgeable about such matters. Estate planning attorneys are often well versed in such matters because they have been through it many times with their clients - and, maybe, even their own family members.
We suggest that you contact one of our Participating Lawyers to learn more about these important documents.