Advance medical directives or health care powers of attorney are a common element of an estate plan. Healthy people often consider them of minimal importance to their overall plan and spend little time considering their terms. However, for those people with terminal diagnoses, or those with negative hospital experiences, the terms of these documents are of paramount importance. Understanding the function of and difference between these documents, as well as distinguishing them from other instruments, such as Do Not Resuscitate Orders ("DNRs"), is a vital part of end-of-life planning.
Living Wills –
Often referred to as "advance medical directives” and sometimes drafted as a document separate from a health care power of attorney, a living will may be used to direct your physicians to remove artificial life support if you are in a "terminal condition" or "persistent vegetative state." These terms are defined in the Virginia Code, meaning that they represent objective standards for health care professionals. Your direction in this document is considered your final statement of your medical wishes and cannot be overridden by your family members or health care agents (discussed below).
People may be as specific as they like in directing what measures they wish to continue or be withdrawn. For example, some people state their specific preference to have artificial nutrition and hydration removed. If a woman may become pregnant, this document can also provide for an exception to her direction to be removed from life support if she is pregnant and keeping her alive by artificial means for some period of time would allow her baby to be delivered safely.
Health care professionals are required by law to administer treatment to patients who do not specify their refusal, even if the health care professionals consider it inappropriate. This treatment can only be discontinued after a certain period of time and a lengthy administrative process. Therefore it is critical to have a properly-drafted living will if it is important to you not to be kept alive by artificial means. The state has an advance medical directive registry where you may upload this document if you wish. https://www.connectvirginia.org/adr/
Your physician will also scan your AMD directly into your medical record upon your request. Taking either of these steps makes it more likely that your wishes will be known and respected; however, remember that if you update the terms of your medical directive in the future, you will need to update the old one with the registry and/or your physician.
Mental Incapacity Planning -
If you are incapable of making your own medical decisions, you may name one or more individuals who can make these choices on your behalf (called your "agents"). The Virginia Code specifies who has the authority to make these decisions if you have not executed a health care power of attorney. You can provide your agents' contact information, including cell phone numbers and email addresses, so that medical professionals will be able to contact them more quickly. On its own, this document is called a “health care power of attorney.” When coupled with a direction to discontinue life support (a “living will”), the entire document is referred to as an advance medical directive.
Remember that the people named as your agents have no obligation to accept the job. You can make this an easier task (and thus, make it more likely that they will take it on) by discussing your preferences with them ahead of time and forgiving them in advance for making mistakes. For more advice about naming health care agents, see our "Choosing the Right Fiduciary" series.
Do Not Resuscitate -
People sometimes confuse an advance medical directive with a "do not resuscitate order" or "DNR." A DNR is an order executed by your physician directing emergency medical personnel not to intervene if your heart has stopped beating or you have stopped breathing. If you and your physician consider a DNR to be appropriate for your circumstances, remember to keep it in a prominent place where it will be seen or can be quickly given to EMTs. Emergency personnel are in the business of quick decisions and attempting to save lives, so their inclination is not to go searching for your DNR in drawers or a safe.
Keep in mind that most hospitals have a policy that a DNR does not extend to medical procedures undertaken in the hospital. There is a presumption that you would want to survive the procedure (otherwise, why would you be undergoing it in the first place?). This means that if you stop breathing or your heart stops beating while such a procedure is in progress, the medical professionals who are present will most likely attempt to resuscitate you, even if you have a DNR order in place.
POST (Physician's Order for Scope of Treatment) -
A POST order can be issued by your doctor in the final six months to one year of your life. These are very specific instruments about what treatments should or should not be administered to you based upon your condition, your end-of-life plans, and what treatments may have already been attempted or are considered unsafe for you. POST orders are respected across state lines.
Organ or Body Donation -
Your advance medical directive may include your instructions for organ or body donation. Even if your driver's license already indicates your preference to be an organ donor, you may wish to include this direction in your medical directive as further evidence of your intentions for your agents and/or family members. Note that you cannot request to be both an organ donor and a body donor, because medical schools require cadavers with their organs intact. Also keep in mind that donating your body to science is not a replacement for burial or cremation planning, both because your body could be refused if it is not needed and because, even if your body is accepted, it may eventually be returned to your family.
Medical documents are sometimes treated as the least important part of a legal estate plan; however, we encourage you to think carefully about your desires and preferences and to revisit them frequently. At Schooley Law Firm, we are also willing to coordinate with your physicians if you have specific health care issues that should be addressed in your advance medical directive, health care power of attorney, or other estate planning documents. Give us a call for more information.