Estate Planning

Advance Medical Directive

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What is an Advance Medical Directive?

An Advance Medical Directive is a legal document that states your wishes regarding your health care and/or names another person to make health care decisions for you if you become unable to make those decisions for yourself. The document is created and interpreted under state law, and the rules and terminology will vary by state. Unless otherwise specified, I’m talking about the Virginia rules and terminology in this post.

An Advance Medical Directive can contain a few different sections, each of which does something different. The sections are described below. Your Advance Medical Directive can include one of these sections, a few of them, or all of them–it’s up to you.

Living Will

One section, called a Living Will, declares your wishes regarding providing, withholding, or withdrawing life-prolonging treatment (or “pulling the plug”) in the event you are diagnosed with a terminal condition. Having a “terminal condition” means that a doctor has said you’re likely to die soon or are in a persistent vegetative state. “Life-prolonging procedures” are the treatments that help you do things like eat, drink, and breathe but which won’t make you well. Pain medication is not a life-prolonging treatment. You can find the complete definitions of these and other relevant terms in section 54.1-2982 of the Virginia Code.

Health Care Power of Attorney

Another section, called a Health Care Power of Attorney, appoints another person to make health care decisions for you if you’re incapable of making informed decisions for yourself.

The Health Care Power of Attorney is the section with the broadest potential applicability, making it potentially the most useful section to include in an Advance Medical Directive. But it’s also one of the more complex sections.

Creating a Health Care Power of Attorney involves making several difficult choices.

You can choose which powers to give your agent (the power to hire and fire your doctors, the power to override other wishes you’ve expressed in your Advance Medical Directive, and many others.

Also, you need to choose a person to serve as an agent. In a Virginia Advance Medical Directive, you can appoint anyone over the age of 18 as your agent. The person you appoint does not need to live in Virginia. That said, it can be a good idea to appoint someone who lives near enough to you to be able to get to you quickly. Additionally, it can be beneficial to choose someone who understands your wishes and values.

You can appoint several people to serve as your agents together, but doing so can cause conflicts and delays. Alternatively, you can appoint several people who can serve as alternates, or you can appoint people to serve as backups. An estate planning attorney can explain these options in more detail.

If you’re determined to be incapable of making informed decisions but you don’t have an Advance Medical Directive, Virginia law says who will make your health care decisions. The default decision-makers, in the order in which they would serve, are: your guardian, your spouse, your adult child, your parent, your adult sibling, and then other blood relatives in descending order of relatedness. If you have two or more adult children, parents, siblings, or other relatives, decisions are made by majority rule of the reasonably available members of the group.

Health Care Instructions

The Health Care Instructions section is where you can specify types of health care you do or do not wish to receive. This section is somewhat like the Living Will section, but it applies when you have not been diagnosed with a terminal condition (if you’ve temporarily unconscious, for example).

This section can be used instead of a Health Care Power of Attorney section if you aren’t comfortable appointing an agent to make decisions for you. However, the Instructions are more limited in applicability, as they only cover the circumstances you list. If you don’t appoint an agent and your instructions don’t cover a situation you happen to be in, the default rule in the Virginia Code (described above) will apply. A Health Care Instructions section can also be used in conjunction with a Health Care Power of Attorney section.

Anatomical Gifts

The Anatomical Gifts section describes your wishes regarding the donation of your body or body parts for transplantation, research, etc. It can also contain a refusal to make an anatomical gift.

How to Create an Advance Medical Directive

You can create an Advance Medical Directive without an attorney. There is a Virginia Statutory Advance Medical Directive form you can fill out yourself. However, you might want to consult an attorney. If you decide to create your own Advance Medical Directive, be sure to follow the rules in your state for the proper execution of an Advance Medical Directive. In Virginia, that means you need to sign the document in the presence of two adult witnesses (who also need to sign the document).

You can revoke an Advance Medical Directive any time you’re capable of understanding the nature and consequences of your actions. You can revoke the document in a writing you’ve signed and dated, destroying the Advance Medical Directive, or orally. Regardless of the means you choose, you have to tell your attending physician you’ve revoked your Advance Medical Directive for the revocation to be effective.

What to Do with Your Advance Medical Directive

Once you have an Advance Medical Directive, it’s important to make sure that your doctors, agent, and the people close to you know you’ve executed the document and to give them copies (or tell them where to find it.). There are national registries that will store your Advance Medical Directive and make it available when it’s needed, but you still have to inform your health care provider that the document exists. Also, Virginia’s Department of Health has established a statewide Advance Health Care Directives Registry.

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