Should My Advance Directive be Part of My Health Care Proxy or a Separate Document?
Question: should my advance directive be part of my health care proxy or a separate document?
There can be a lot of confusion around health care directives and their various names, including:
- Living will
- Advance directive
- Health care proxy
- Health care power of attorney
I’ll start by attempting to explain the different documents and their functions, and then answer your question about whether they should be combined or kept separate.
Advance directives and living wills are both written declarations of your health care wishes. The living will is actually a kind of advance directive that only applies to withdrawal of life support. Advance directives typically express your wishes regarding a broader range of health care decisions. In some states, living wills are given the force of law, but in many others, both they and broader advance directives are meant only to guide the decisionmaker, whether your agent under a health care proxy, power of attorney, or ultimately, a judge.
Since it can be difficult for those of us who are not health care professionals to anticipate the many types of health care decisions that may come up in our lives, some non-profit organizations have developed workbooks for our use. One of the most popular is Five Wishes.
Appointing an Agent
Both health care proxies and health care powers of attorney appoint an agent to make health care decisions for you when and if you ever become unable to do so for yourself. The different names simply depend on your state—different states having adopted different terminology. Your lawyer can provide you with a form and counsel on who to appoint, but forms are also generally available online and even handed out by hospitals. The only problem is with this is that many people end up signing the forms more than once and may even appoint different agents at different times, sometimes creating confusion. For instance, a parent may appoint the child who happened to bring her to the hospital one time and a different child who accompanies her on her next hospital visit. Try to be consistent in who you appoint.
Unlike advance directives and the appointment of health care agents, Do Not Resuscitate (DNR) and Medical Orders for Life Sustaining Treatment (MOLST) are medical orders signed by physicians or other health care professionals after consultation with the patient. DNR orders direct that in the event the patient’s heart stops or she stops breathing, medical professionals may not take measures to resuscitate her. MOLSTs can involve instructions regarding a much wider range of medical procedures, including intubation, tube feeding, antibiotics, and so on.
What About Combining Documents?
Finally, getting to your question about whether your advance directive should be included in your appointment of a health care agent, experts disagree. They generally agree that it’s important to have both. Otherwise your agent is likely to simply use his judgment in making decisions for you, rather than trying to make the decision you would make if you were able to do so for yourself. The advantage of having a combined document is that your agent will definitely have your wishes and it will be apparent to others if he obviously ignores them. On the other hand, there may be circumstances where others would interpret your wishes differently from your agent and it could create conflicts with health care providers if they were to see your wishes and disagree with your agent as to their interpretation.
Further, as is discussed above, you may be able to be more specific in your wishes by using a workbook that could be referenced in your health care proxy but would, by definition, be a separate document. In our practice, we generally advise clients to include at least a general statement of their health care wishes in their health care proxies, and we give them a workbook to use to provide more detailed guidance to their agents.