On Your Behalf: Understanding Advance Directives

“Advance Directives” is really an umbrella term used to talk about a collection of documents that communicate your wishes and designate someone to speak on your behalf should you be unable to. These include a, Healthcare Power of Attorney, Financial Power of Attorney, POLST Form, Living Will, Last Will and Testament, and Living Trust.  

So, why are there multiple documents and why do we need them in the first place? Good question. Each of these documents provides a vehicle for communicating particular wishes to a particular audience. When we think about who the Advance Directives are for we might assume they are just for the individual creating them. It is true that advance directives allow us to shape the type of response we would like to have in a medical event or diagnosis and helps us shape the life and death we would like. However, it is also true that our families, emergency responders, caregivers, doctors, and other healthcare professionals are also part of the audience that you are speaking to in this collection of documents. Many people are involved in the care of a human life and it is crucial that we not assume that team will automatically know or understand what we would want for ourselves. As Dr. Ira Byock, MD says, “I have advance directives, not because I have a serious illness, but because I have a family.” While many people have thought about their wishes in particular situations, very few people have documented those and even fewer have alerted their family and doctors. The three step process of advocating for ourselves includes determining our wishes, legally documenting those wishes, and communicating and distributing those documents to all appropriate parties.

Documents You Need to Know: Let’s take a look at each of these documents to get a better understanding of what they include. You will begin to see both their overlapping similarities and their differences.

Living Will

A Living Will allows you to convey your wishes regarding medical treatment. The beauty of this document is that you are giving yourself the opportunity to use your voice before you are in a crisis or unable to speak for yourself. The process of creating this document also helps individuals make specific statements about their care wishes. Often we will generalize about not wanting, “extreme measures” taken, or not wanting care when we no longer have a “quality life”. In a Living Will, you will need to define those vague terms and use specific instructions on the course of action you would or would not like to take if you are in a terminal condition, a permanent coma, or a persistent vegetative state.

Creating a Living Will is a first step, but communicating it is the second and equally important component of this document. Many adult children of aging parents do not know if their parents have a Living Will let alone what it contains or where to find it. By the same token, many people have Living Wills that were created long ago and don’t know what they contain, if they are up-to-date or where they are stored. It really takes a group commitment to be informed and know how to speak for ourselves and our loved ones. Gather for a family meeting to share the specifics of the document and to talk through what is meant by general terms such as “quality of life” or “extreme measures” when it comes to medical care. Not only does this give an opportunity for the individual to share the meaning behind their wishes and decisions, it is also a time to help mitigate family dynamics and tension over the decisions and outcome. It is also crucial to share your Living Will wishes with your doctor. An attorney is usually the professional to draft a Living Will, but it really is a healthcare document. Make sure your healthcare providers know your wishes.

POLST

On this note, many times a Living Will simply isn’t enough to communicate to the many doctors, caregivers, or emergency responders involved in care. This is where the POLST, or Physicians Orders for Life Sustaining Treatment, comes into play. This document provides a portable and simplified version of your Living Will and applies to situations where “life sustaining treatment” is needed. The POLST form must be signed by your doctor, ARNP, or physician’s assistant. For those that are receiving in-home care services, it is common to keep this bright green document on the refrigerator in case of an emergency or in the event 911 are called for a medical event. For more information about the POLST and to download a form visit http://www.wsma.org/POLST.

Durable Power of Attorney

At its base, a Durable Power of Attorney grants decision-making authority to another person or persons. There are many options and variances in a Power of Attorney. It may cover health and medical decisions only (Healthcare Power of Attorney), financial decisions only (Financial Power of Attorney), or both. Some Powers of Attorney take effect only after certain conditions have been met and some take effect immediately upon signing with a witness. Creating a Durable Power of Attorney can prevent the need for a costly guardianship proceeding. (For more about this, view attorney Lisa Kremer’s article, “Avoiding Guardianship with Proper Planning”.) It is important to consult with an experienced elder law attorney to assist with the creation of this document as many factors are involved such as delineating powers, conflicts of interest, etc. 

So far, all of the documents we’ve discussed pertain to a person’s life. Two documents that pertain to your estate after your death are a Last Will and Testament or a Living Trust.

Last Will and Testament 

The Last Will and Testament is a legal document whereby a person names one or more persons to manage his or her estate in order to provide for the distribution of his/her property and assets after death. A Last Will and Testament must go through probate in court.

Living Trust 

A Living Trust, while pertaining to your estate is actually created during your lifetime and continues operating after your death. You can gather all your assets in one document, including property, annuities, stocks, etc. The trust then becomes the legal owner of the assets. As the owner, you could initially be the trustee. In the creation of the Living Trust you will name the beneficiaries. The key advantage to this model is that the Living Trust does not go through probate in court.

Social Media Will 

Social media is a part of daily life, so what happens to that online identity and content when you die? USA.gov advises you appoint someone you trust as an online executor, and to hand over all passwords and a clear statement about how you’d like each of your accounts handled after your death (memorialized, deactivated, etc.) Accounts, such as email or Facebook, that are left unattended are often at risk for being hacked and misused; however, social media platforms will not let anyone simply deactivate another person’s account. Stipulate in your will that the online executor should have a copy of your death certificate. The online executor may need this as proof in order for websites to take any actions on your behalf. As always, be sure to review the privacy policies and the terms and conditions of each website where you have a presence. For a social media will template, click the image. 

Managing Advance Directives in the Digital Age

When it comes to managing all of your newly created and updated documents, there is an app for that! The American Bar Association has created My Health Care Wishes, which allows individuals to have a digital copy of their important healthcare wishes on their mobile device. It is also a great tool for sharing documents with family that may be spread out around the country. Having your documents at your advocates’ fingertips in an emergency can be crucial in getting the care you want in a crisis. For more information about the app visit, http://www.americanbar.org/groups/law_aging/MyHealthCareWishesApp.html

Published on October 2, 2014.