Advance Directives Again

I wrote this as a columnist for the blog, Time Goes By,  a blog about topics of interest to all of us with issues surrounding aging. Although I have written here about Oregon Advance Directives, I thought I would share the article with readers of Oregon Elder Law.

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As I make my way toward the grim reaper, there may come a time when I become so sick that I cannot communicate with those around me. My inability to communicate might be due to a temporary illness, but it is most likely to happen during the last days of life. When I can no longer communicate, I have an advance directive that will talk to family and care givers for me.

 

An advance directive is a legally enforceable document that manages my medical care when I cannot. As long as I can still lift my head from the pillow and make my wishes known, my advance directive is scrap paper but when I can no longer do that, my advance directive controls who makes decisions for me and what treatments I receive.

The name “advance directive” probably comes from the fact that the document is signed in advance of final illness and gives directions, but that isn’t the only name the document goes by.

When documents with a similar purpose first appeared they were called “living wills.” Lawyers don’t like to stray far from what they know. They called it a will because it looked like one.

The next name to come around was a “health care power of attorney.” Once again, lawyers took something they knew, the power of attorney, and adapted it for another purpose. The document has also been called a personal directive, advance decision, health care proxy and probably a few other things.

Maybe the name “advance directive” will stick, but don’t count on it. No matter what they are called, all these documents all do the same thing: they provide family and care givers with instructions for how we want to be treated at the end of life.

The most important part of an advance directive is the appointment of a health care representative. A health care representative makes health care decisions, including decisions about when to pull the plug, when you can’t make them yourself.

This person is the advocate for your wishes when you can’t advocate on your own. In my advance directive I named my spouse as my health care representative. I have told her what I want at the end of life and I trust her to make decisions about my care that respect my wishes.

The second most important part of an advance directive is instructions to your medical providers about the kind of treatment you want or don’t want. These “directives” are addressed to your doctor. My sister is a doctor and I have never known her to take directions, but I filled out this part of my advance directive anyway.

I didn’t have to. I could have stopped after appointing my spouse my health care representative, thereby leaving everything up to her. I can fill out all or part of an advanced directive and, if it is properly signed and witnessed, the part filled out will be legally enforceable.

If you want or don’t want certain kinds of medical intervention at the end of life and you don’t have my sister as your doctor, you make those wishes happen by putting them in your advance directive.

Once you’ve named a health care representative to advocate for you and you’ve told the medical profession what sort of care you want, the heavy lifting is done. One of my favorite advanced directives comes from a nonprofit called Aging With Dignity. It is called Five Wishes [pdf] and may be filled out online. This advanced directive is named for five common wishes about dying.

Like all advance directives, it asks you to name a health care representative and give directions about end-of-life care. It goes on to ask how much pain relief you want (we are talking heavy drugs here), what sort of surroundings you want to die in and what you want your loved ones to know.

The Five Wishes document meets legal requirements for an advanced directive in 42 states, but not here in Oregon where I live. I encourage you to find and use the form that is most common in the state where you live.

You need to take your advance directive with you to the hospital when you go in for treatment and have the nurse or social worker scan a copy of the document into your file. The hospitals don’t like to deal with unfamiliar documents. Don’t stress them out. Bring them what they are used to seeing in your community.

Advance directives can be enforced by the courts if they are filled out and witnessed (or notarized) properly, but court is not where you want to go. If you pay attention to the instructions, particularly those concerning witnesses, you have set the stage for end of life care without resort to lawyers.

Some families are so litigious that no document will keep them out of the courthouse but for most of us, an advance directive provides the framework for end of life care that is lawyer-free.

The advance directive is the only legal document that I recommend for everyone. Most legal documents have risks and rewards that must be balanced. The advance directive, however, presents very little risk and big rewards. The end of life is a time for your family to take care of emotional and spiritual matters, not make appointments with lawyers.

A properly signed and witnessed advance directive does as much as a person can do to ensure that the details of your dying do not end up at the courthouse.

The Oregon Advance Directive, Health Care Power of Attorney, Living Will or whatever else it gets called.

In law, names change with the times, but the documents stay the same. What was once a living will became a health care power of attorney and has now become an advance directive. The Oregon document is called an advance directive and the form of the document was dictated by the legislature. The form does two things: (1) it names a person to make health care decisions for you if you cannot make them yourself; (2) it gives your doctor directions as to what sorts of treatment you want in circumstances where you are unable to give those directions yourself. Like any legal document, the devil is in the details.

I buy the Oregon advance directive forms in batches of a hundred from a local publisher and hand them out like candy. I am not the only one doing this. Hospitals buy them from the same publisher and hand them out as freely as I do. We give them away for free because we believe that everyone should have one.

Lets' take a look at what the advance directive does. You can take a look at and download the Oregon form here. The form contains three parts, aptly labeled part A, part B, and part C. Part A contains directions for filling out the form and a warning that no one can make you fill it out. Some political groups fear that the advance directive will make it easier for hospital employees to kill old people, thus the first part contains warnings, explanations, and assurances. I am not too worried about this stuff. If worry about evil nurses killing old people keeps you up at night, read part A carefully.

Part B nominates a person to make health care decisions for you if you cannot make them yourself. You fill out your personal information and then nominate a primary and secondary person to act for you in health care matters if you are in a coma and can't communicate your wishes. The person you nominate will be the person the doctors look to when it comes time to decide whether or not to pull the plug on your life support system. This person also has the right to put you in the mental ward for up to fourteen days if you are suffering from dementia and have turned dangerous to yourself or others.

I think that everyone should fill out part B of the Oregon advance directive. Name your spouse, a reliable child, or a good friend. Then talk to that person so he or she knows your attitude about end-of-life care.

Part C gives instructions to your doctor about specific procedures that you may or may not want. Most of the questions deal with tube feeding and life support. I only have the vaguest idea about what constitutes life support and I know nothing about tube feeding. Besides that, my sister is a doctor, and I am not convinced that doctors ever take directions. When I did my advance directive, I left Part C blank. If you are interested in things like tube feeding and have a doctor that might actually consider your wishes, then by all means go ahead and fill out Part C.

The point is that you can fill our Part B, or Par C or both, but you don't have to fill out both.

Once you have filled out the form you need to sign it in front of witnesses. If you filled out Part B, sign at the end of Part B. If you filled out Part C, sign at the end of Part C. If you filled out both, sign both. You need two witnesses to your signature. For the first witness anyone will work except your doctor and the person you named to be your health care representative in Part B. For the second witness, you must find someone (1) who is not related to you by blood, marriage or adoption; (2) who is not entitled to any of your estate after you die, and  (3) is not employed by a health care facility where you are residing. Use a next door neighbor, the mailman, or the legal assistant in my office.

Once you have filled out the advance directive and had it witnessed, you keep if for the next time you go to the hospital. When you go, take it along. They will ask if you have one and will be ready to take a picture of the original to put in your medical file. Then if you go under the knife and it doesn't work out, the hospital can look at the advance directive for contact information of the person allowed to make decisions for you.