Advance directives: your life, your voice, your choice.

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/Jewish Voice StaffWhat is an Advance Directive?

“Advance” refers to a time in the future when your physician has determined you are no longer able to participate actively in your health care decisions.  “Directive” refers to your ability to direct certain health care decisions about yourself, whether to another person - your “Agent” - or to your health care providers.  An Advance Directive allows you to make decisions affecting your health care in advance of a time when you are no longer able to do so.

Who can complete an Advance Directive?

Anyone over 18 years of age who is competent (someone who is legally able to make their own decisions) may complete an Advance Directive.

Is a “Living Will” the same as a “Durable Power of Attorney for Health Care”?

No. Although both are “Advance Directives”, there is a significant difference.

A Durable Power of Attorney for Health Care allows you to appoint an “Agent” to make health care decisions for you when your physician has determined you are unable to make decisions for yourself. Many think of this as a “dying form” when for some the document may be used for many years because of mental illness or disability, not because they are dying.

A Living Will directs your physician to withhold or stop life-sustaining medical treatments that merely prolong the dying process and are not necessary to your comfort or to alleviate pain, but only if you have an incurable or irreversible condition that will cause your death, and you become unable to make decisions regarding your medical treatment. You do not appoint an Agent. You create your own directive to your physicians about your wishes for your future medical treatment.

With A Durable Power of Attorney for Health Care, can my Agent override my wishes?

No.  Your health care Agent has no power to make decisions about your treatment as long as you are able to make and communicate your own decisions.

Who do I appoint as my Health Care Agent?

Are there people who cannot be my Health Care Agent? Select one person as your primary Agent and another person as Alternative Agent if your primary Agent cannot serve; your Alternative Agent should be equally as qualified. Your Agents must act consistently with your desires as you have made them known.

Choose someone who knows you very well, would know what you would want in a medical crisis, and would tell your physician what you have told them. Your Agent will be asked to use your values, not theirs, to make medical decisions. They should speak as if they were you. Choose someone who will not fall apart in a crisis and who will do right by you even if it is the most difficult thing they have ever had to do.

Your Agent  cannot be: (1) your health care provider; (2) an employee of your health care provider, unless it is your relative; (3) your residential care provider; or (4) an employee of your residential care provider, unless it is your relative.

Is this the same as a financial Power of Attorney?

No. Financial Powers of Attorney do not apply to health care decisions.

 For how long is my Advance Directive valid?

Unless you state otherwise, these documents exist until they are revoked. They can easily be revoked.

Do I have to use a specific form?

No. There are suggested forms for both documents, but the law does not require the use of any specific one. It is critical that certain steps be followed.

Where should I keep my Advance Directive?

An Advance Directive is only useful if it is known to exist.  Do not hide your Advance Directive or lock it away. Make multiple copies. Keep them in many places. Give them to your physicians, your Agent, family members, close friends, clergy, and your family attorney.  Keep a copy in your wallet or purse and even in the glove box of your car.

If I do not have an Advance Directive, who will make my health care decisions?

Your attending physician will exercise their professional medical judgment in making decisions. They may speak with your spouse, if you have one, or with other close relatives and family members

What if my Health Care Agent makes decisions that are not in my best interest?

A court can take away the power of your Agent to make health care decisions for you if your Agent: (1) authorizes anything that is illegal; (2) acts contrary to your known desires; or (3) where your desires are not known, by your Agent does anything that is clearly contrary to your best interests.

Must I use a lawyer?

No. Although you may wish to consult one if you have questions about Advance Directives, one is not required.  You can obtain approved forms by contacting either the Rhode Island Department of Health or the Rhode Island Attorney General’s office, or by contacting your attorney.

JAY M. ELIAS, ESQ. is an attorney who has spent most of his professional career in the field of health care law. JUDITH LYNN GORDON, RN, BSN, has long been involved in nursing and hospice care, including as a former Director of the Philip Hulitar In-Patient Unit of Hospice Care of Rhode Island. Jay currently serves as General Counsel, and Judith Lynn as Community Outreach Manager, at DYER-LAKE Funeral Home in North Attleboro, Mass.

NOTE:  This article is offered solely for informational purposes. Nothing contained herein is intended to provide, or to be relied upon as, legal advice concerning any individual situation. Only an experienced at-torney giving individual attention to the specific facts of your circumstances is in a position to provide you with reliable legal advice. The authors and DYER-LAKE disclaim any liability for any actions taken or not taken in reliance upon this article.