Advance directives, living wills, and durable power of attorney
Legally Speaking
Clifford Warren Lober, MD, JD, presents legal dilemmas in dermatology every other month. He is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.
By Clifford Warren Lober, MD, JD, August 1, 2018
Carli: Bryan, one of the quality measures available in the Merit-based Incentive Payment Program (MIPS) requires us to ask our patients if they have an advance care plan or surrogate decision maker. What is the difference between an advance care plan, living will, durable power of attorney, or advance directive? This is really confusing.
Bryan: An advance directive, in the broadest sense, is an instruction (directive) or set of instructions made in advance of an anticipated event. A medical advance directive describes for your physician and family what medical treatments or procedures you wish to be pursued in the event you are unable to communicate your wishes in the future, such as should you become unconscious, terminally ill, or legally incompetent to make decisions. Advance directives include living wills, a durable power of attorney, do-not-resuscitate orders, organ or tissue donation requests, and physician orders for life sustaining treatment (POLST).
Carli: What is a living will?
Bryan: A living will is a formal legal document that specifies the actions that should or should not be taken if you are unable to make medical decisions for yourself because of incapacity. It describes the circumstances under which you would or would not want therapeutic or palliative treatments such as oral or intravenous feeding, fluids, antibiotics, pain medication, dialysis, cardiac resuscitation, etc., to be given or withheld. A patient may, for example, decide to discontinue aggressive treatments but continue palliative care such as pain medication and fluids.
Carli: Are there any other things that might be in a living will?
Bryan: Yes. You may, for example, wish to indicate whether you want your kidneys, other organs, or body to be donated in the event of your death. Make sure your state does not require a separate donation form.
Carli: Does a living will have to be in writing?
Bryan: Most states require a living will to be written and witnessed by one or two people who are not relatives or treating medical personnel, and notarized. Some states, however, recognize oral living wills. To avoid confusion, I recommend that a living will be put in writing and that you check the specific requirements of your state regarding witnesses and notarization.
Carli: When does a living will become effective?
Bryan: In most states two physicians must certify that you are in a terminal state and/or do not have the capacity to make medical decisions.
Carli: What if I change my mind?
Bryan: You can revoke or modify a living will at any time and for any reason, as long as you are legally competent. Some states only recognize living wills for a limited number of years and, if you live in one of those states, you need to periodically renew your living will.
Carli: Isn’t a living will the same as a durable power of attorney?
Bryan: Absolutely not. Whereas a living will specifies the actions that should or should not be taken if you are unable to make medical decisions, a health care power of attorney identifies who will make decisions for you in the event you are incapacitated. A living will and a durable power of attorney, therefore, both function to fulfill a patient’s wishes.
Carli: Is a health care proxy the same as a health care surrogate?
Bryan: Yes. Depending upon the laws in your state, a health care proxy may be called a surrogate, agent, advocate, or attorney-in-fact.
Carli: Does a power of attorney have to be in writing?
Bryan: States almost uniformly require a power of attorney to be in writing, witnessed, and notarized. Some states also require the individual to whom the power of attorney is given (called the proxy) to sign the statement as well.
Carli: How should someone decide to whom he or she should give a durable power of attorney?
Bryan: They should select someone who clearly understands what therapeutic and palliative treatments they would want as well as the circumstances under which these treatments should be given or withheld. People usually chose their spouse or another close relative. It is also a good idea to select an alternate proxy should the individual to whom you give power of attorney be unavailable.
Carli: Is a durable power of attorney the same as a physician order for life sustaining treatment?
Bryan: No. A physician order for life-sustaining treatment, also called a provider order for life-sustaining treatment, is a document written or a form that is filled out by your physician. It does not replace your living will, but rather contains instructions that ensure that the wishes expressed in that document are followed. It is usually posted on or near your bed where hospital personnel can easily find it. Like a living will, it contains instructions concerning the use of feeding tubes, antibiotics, resuscitation, etc.
Carli: Where can someone get the forms for a living will and durable power of attorney?
Bryan: Hospitals by law offer the appropriate forms to patients who are admitted if they have not already executed a living will or durable power of attorney. Alternatively, the forms can be obtained from your attorney, state department of health, or state medical organization. Some states merge the two forms into one so that you can name your health care proxy as well as execute your living will.
Carli: Is there anything else I should do?
Bryan: Yes. You should keep the original documents and provide your health care proxy, local hospital, and your physician with copies. You should also review the documents annually to determine if you wish to make any changes.
Carli: What are the “Five Wishes”?
Bryan: The “Five Wishes” is an advance directive document offered by the non-profit group Aging with Dignity. It contains both a living will and a designation of a health care proxy, as well as sections that allow one to describe other personal matters (such as how he or she wishes to be remembered). Available on the internet, it has been used by over 20 million people and is legally sufficient in 42 states. In the eight other states, it can be appended to the required statutory forms.
Carli: Thanks, Bryan!
