I frequently find that my estate planning clients come into our initial meeting with a decent understanding that end-of-life care directions are an important part of a complete estate plan, but that they often have a confused sense of how end-of-life care directions are actually documented. This is understandable as the central document for end-of-life care planning—the health care directive—goes by a dizzying variety of names and is often discussed in the same breath as other common health care planning documents. To combat that confusion, allow me to offer a quick breakdown of the health care directive’s purpose, limitations and relationship to other documents it is often confused with.
In the most basic sense, a health care directive is a simple document through which you indicate whether you do or do not want life support in the event you are diagnosed to be in a permanent unconscious condition or to be terminally ill. This document is referred to by a wide variety of alternate names. The most commonly encountered are “living will” and “advance directive,” but other names include “advance health care directive,” “directive to physicians,” “medical directive,” “personal directive,” and “advance decision.” Despite these many aliases, all refer to a document which, under Washington law (RCW 70.122.030), exists to express your end-of-life care preferences when you are no longer able to make decisions for yourself. To execute a health care directive, you must still have the capacity to make health care decision for yourself. However, you may revoke your health care directive regardless of your level of capacity by destroying it or by announcing to your attending physician your intent to revoke it.
A crucial point to understand is that a health care directive does not appoint someone to make health care decisions for you. Giving someone the power and responsibility to make health care decisions on your behalf is done through a document called a “health care power of attorney” (sometimes referred to as a “durable health care power of attorney,” “power of attorney for health care decisions” or simply a “durable power of attorney”). If you have used a health care power of attorney to appoint someone to make health care decisions for you, having a health care directive in place will provide that person with guidance in the event that they need to make end-of-life care decisions on your behalf. Because a health care directive gives useful guidance to the person named in your healthcare power of attorney, you may see these two different instruments being combined in a single document (for instance, the Washington State Medical Association takes this approach). Nevertheless, they are separate and distinct.
Another common point of confusion is the difference between a health care directive and a “do-not-resuscitate order” (also known as a “DNR” or a “no code”). A do-not-resuscitate order is a document which you and your physician execute together and which gives medical orders to paramedics and emergency room medical staff on whether you would like CPR performed in the event you are experiencing cardiopulmonary arrest. In Washington, a do-not-resuscitate order is part of a broader document created by the Washington State Department of Health called a “Physician Orders for Life-Sustaining Treatment” (known by the initialism “POLST”). A POLST is a physician order form through which individuals in very poor health (regardless of age) can, with the help of their physician, convert their end-of-life care preferences into clear and specific medical orders. There is a lot of overlap between a health care directive and a POLST in that both set out end-of-life care instructions, but only a POLST with a do-not-resuscitate order in it will keep paramedics and emergency room staff from providing emergency medical care in an attempt to stabilize you. Your health care directive will only be followed once you are stable. Thus, if you are in poor health and feel strongly about not receiving emergency medical intervention like CPR, you should speak with your physician about executing a POLST to accompany your health care directive.
Lastly, you should know that your health care directive can be as simple or as detailed as you prefer. While basic health care directive template created by the Washington legislature contains only a single yes or no election (that is, a choice between whether you would or would not like life sustaining treatment), Washington law also allows additional directions to be added to your health care directive before signing and at any time after. I will often counsel clients about this flexibility and invite them to return should they ever want to further personalize their health care directive. For example, common additional directives include things like specifying the level of pain relief you desire, indicating whether you would like assistance with breathing even if other forms of life support are withdrawn, or asking that life sustaining treatment be provided only so long as necessary for your family to visit with you and say final goodbyes.
The health care directive is the primary end-of-life care planning document. It is appropriate to execute at any time, extensively customizable, and complements—but should not be confused with—other important health care planning documents.
Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
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