An Advanced Medical Directive (AMD) is the relevant health care planning document advocated by health care providers as well as estate planning attorneys. As with a Durable Financial Power of Attorney, it is an essential document in planning for the possibility of disability or incapacity. The need for an Advanced Medical Directive is clear when there isn’t one. If no one is authorized to make medical decisions for a patient who is unable to make his own decisions, health care providers are required to take all possible measures to preserve life, including feeding tubes, shock resuscitation, artificial means of breathing, complex treatment of incurable diseases. It can truly be a crisis for friends and family when a patient is not allowed to die naturally, even when everyone involved knows the patient does not want the heroic measures.
An AMD has three main parts, and some attorneys prepare the parts as separate stand-alone documents. Each serves a different function.
- Living Will, or Physician’s Directive in which you state your preferences for the type of health care you want if you are unable to communicate with your health care providers. You can authorize a “Do Not Resuscitate” Order, refuse permission for artificial nutrition and hydration, and request treatment with pain relieving medication that might result in addiction.
- Health Care Power of Attorney allows you to designate the person(s) who are authorized to make health care decisions on your behalf, and who are authorized to discuss your treatment with your health care providers. The document specifies that your designated agent has no personal liability for the decisions made on your behalf, and is not responsible for paying your medical bills.
- HIPAA Privacy Authorization serves as your privacy authorization under the Health Insurance Portability and Accountability Act of 1996. In this document, you specifically designate those persons who can have access to your medical records and who your healthcare providers can talk to about your treatment.
Generally, an AMD states the conditions under which your agent can act on your behalf. Most contain language that state two physicians will determine that one of four conditions exist, and that it is reasonably certain the patient will not survive, or will not return to a cognitive quality of life:
- a disease, illness or other condition which is incurable, terminal and expected to result in death from that injury, disease, or illness within six months and thus that the use of life sustaining procedures would serve only to prolong the dying process; or
- a coma or a vegetative state and the coma or vegetative state is irreversible, meaning that there is no reasonable medical probability of ever regaining consciousness, or if in a vegetative state, the higher function of the brain has ceased; or
- dementia that is so severe as to prevent making decisions, respond to commands or requests, unable to recognize and meaningfully interact with family or other loved ones, or unable to convey in any way the attributes associated with personhood, such as the ability to experience joy, desire, pleasure and consciousness of self as a continuing entity; or
- severely or irreversibly disabled, as a result of injury or illness and there is no reasonable expectation of recovery to decision making capacity and the ability to care independently for own self, or the ability to recognize and meaningfully interact with family or other loved ones, or to convey in any way the attributes associated with personhood, such as the ability to experience joy, desire, pleasure and consciousness of myself as a continuing entity.
Who needs an Advance Directive: everyone over the age of 18! Parents are not authorized to make decisions for a child who is no longer a minor. Husbands and wives can make decisions for each other, but a healthcare provider is not obliged to follow the instructions, absent an AMD. The only way to be certain that one’s preferences will be taken into consideration is to have an AMD.
Each state has its own requirements for a legally enforceable AMD. In Virginia, the document must be witnessed by two people who are not blood relatives and who are not providing health care for the principal. The document must also be notarized. Fortunately, copies are as effective as a signed original, so copies can be distributed to dentists, doctors and clinics.
