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THE TGB ELDERLAW ATTORNEY: Advance Directives

Posted Mar 22 2012 8:30am

Orrin Onken Orrin Onken writes the twice-monthly TGB Elderlaw Attorney column in which he discusses legal issues of concern and interest to elders. He is an elderlaw attorney licensed to practice in the state of Oregon. He also keeps his own blog, Oregon Elder Law , and you can read more about his background here . All his Time Goes By columns are collected in this list .

category_bug_elderlaw 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.

[EDITORIAL NOTE: Is there an elderlaw topic you would like Orrin Onken to discuss? Leave your suggestion in the comments below and it may turn up in a future column. Remember, Orrin cannot advise on specific personal legal issues.]


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