ESTATE PLANNING: ADVANCE HEALTH CARE DIRECTIVES

Powers of Attorney for Health Care and Living Wills

You have the right to make decisions about your medical care. But there may come a time when you are too ill to make those choices known. You can protect your right to choose by making decisions ahead of time about the medical care you may want in the future by preparing an advance health care directive. Advance directives not only protect your right to make medical decisions that affect your life but also provide guidance to your family and your health care providers.

Although an advance directive may be spoken or written, it is usually best to prepare a written directive consistent with Maine law so that your wishes are accurately and legally documented. See Maine's Probate Code at 18-A M.R.S.A. § 5-801 et seq.

An advance health care directive typically includes a Power of Attorney for Health Care and a Living Will. A Power of Attorney for Health Care is a written document in which you name a person, called an Agent, to act as your proxy and make decisions for you typically if you become unable to do so yourself. A Living Will is a set of written instructions that explains your wishes regarding end-of-life decisions in the event that you become terminally ill and unable to communicate.

An advance health care directive may also include sections that state your wishes regarding organ donation and disposition of your bodily remains after your death.

Power of Attorney for Health Care
 

A Power of Attorney for Health Care names an individual to make health care decisions for you right away or when you are too ill to make decisions about your own care.
 

The person you choose to make your health care decisions is called your Agent. You may also name alternate Agents in case the first person you choose is unavailable. (Do not be confused by the use of the word "attorney." Neither you nor your Agent needs to be a lawyer.)
 

Naming a health care Agent is not equivalent to having a Guardian appointed for you by a Probate Court. You do not give up the right to make your own decisions while you are able to do so. And if you become incapacitated, the Agent must make decisions according to any instructions you have given and wishes you have made known while competent. The Agent must also consider your personal values. For example, you can state that you are opposed on religious or personal grounds to a particular form of medical care. Your Agent must abide by your wishes.
 

You may limit the kinds of decisions your Agent can make. If you do not place any limits on your Agent's authority, the Agent will have authority to make any and all health care decisions for you including authority to: consent or withhold consent to any care and treatment; choose your physician; place you in an institution such as a nursing home; and decide whether you should be kept alive by artificial means if you are terminally ill.
 

Before naming someone as Agent, you should first find out if he or she is willing and able to act as your Agent. You should also discuss your expectations with that person to be sure that your wishes will be carried out. Some of the factors you should consider in choosing an Agent are;

• Do I trust this person?

• Does this person understand my feelings and my point of view? Will he or she follow my wishes when I am incapacitated?

• Is this person willing to spend the time needed to be available when I am ill and give directions to the doctors and nurses?

As long as you are still competent to tell the doctors and nurses what you want, they will listen to you and follow your instructions about what care you want to be given. The doctors and nurses will seek out your Agent under the advance directive only when you are no longer capable or able to express yourself unless you have indicated otherwise.
 

Living Will
 

A Living Will allows you to express your wishes about end-of-Iife decisions in the event that you are in a terminal condition and can no longer communicate with your doctor. It is called a "Living Will" because it takes effect while you are still alive.

While some people may want to prolong life regardless of recovery, others may want to refuse medical measures that would prolong life if the chances of recovery are not good. Examples of life prolonging measures include the following: cardiopulmonary resuscitation (CPR), the use of electric shock to restart your heart, tube feeding, respirators and kidney dialysis. A Living Will allows you to decide whether you would like to receive or refuse life-prolonging measures. Among other things, you may indicate whether you would like to receive or refuse artificial nutrition and hydration and whether you would like to receive treatment for the relief of pain and discomfort.

Organ Donation

You may also wish to say whether or not you want to have your organs donated at death, either for transplant or as therapy for another person, or for purposes of research and education. Ultimately, it will be up to your family whether organ donation occurs but you may want to clearly state your preferences in writing. If organ donation is important to you, you should discuss your wishes with members of your family so that they are comfortable with your decision and abide by your wishes.

Funeral and Burial Arrangements
 

The advance health care directive is also an appropriate place to record your preferences regarding disposition of bodily remains. Do you want a funeral service in a church? Do you want to be cremated? Do you want to be buried and, if so, where?
 

How to Complete the Health Care Advance Directive
 

Maine law requires that your advance health care directive be witnessed by two competent adults, and it is best if those witnesses are not family members. Do not have the person you name as Agent sign as a witness. People who travel out of state should also have their advance directives witnessed by a notary public. This could improve the likelihood that the advance directive will be honored in other states.

Give a copy of the completed document to your doctor, to any other health care providers you have, to any facility where you get health care, and to any Agents you have named. Again, you should make sure that your Agent understands your wishes and is willing to carry them out. You may also want to give copies of the advance health care directive to a relative or friend who is likely to be notified in an emergency and to your lawyer.

If You Change Your Mind: Revoking the Health Care Advance Directive
 

You have the right to cancel or replace the advance health care directive at any time as long as you are still competent. You should write "canceled" or "revoked," with the date and your signature across the original of the form. Notify your doctor, your Agents and anyone else to whom you gave the now-revoked advance directive that you have canceled it and ask them to destroy their copies. Provide them with a copy of any document.
 

Acting as an Agent under a Power of Attorney for Health Care
 

When you make health care decisions for a friend or relative under an advance directive, you must follow his or her directions and wishes. These include wishes and directions written down in the advance directive as well as directions and wishes expressed in others ways. You must also consider the person's values, such as his or her religious or cultural values. Talk with the friend or relative while that person is still competent to be sure that you understand his or her wishes.

You may decide at some point that you no longer wish to serve as the Agent under a Power of Attorney for Health Care, either because you are moving from the area or for some other reason. You are not required to obtain approval for withdrawing as the Agent or go through any formal process. You should, however, let your friend or relative know that you will no longer serve as the Agent if he or she is still competent so that he or she can make new arrangements. You should also notify the alternate Agent named in the form.
 

If your friend or relative is no longer competent and there is no alternate Agent available or willing to take over, you should make sure that someone else is available to look after the person's needs such as a family member or one of the State agencies which provides adult protective services.

What Happens If You Do Not Have a Health Care Advance Directive:

Surrogate Decision Making

Even if you do not sign an advance health care directive, it may be possible for someone else, usually a family member, to make health care decisions on your behalf. This person is called a "surrogate". In Maine, a surrogate may make health care decisions for an adult who does not have an Agent or Guardian if that person has been determined by the primary physician to lack capacity.

Among other things, the law lists in order of priority the people who can act as your surrogate for health care decisions. First, the physician must consult your spouse or an adult who shares an emotional, physical and financial relationship similar to a spouse. If there is no such person available, the doctor will consult your adult children. If you have no adult children, or none are available, then the doctor will go down the list seeking out any sisters and brothers who are available, adult grandchildren or more distant relatives. If there is no family whatsoever, the doctor may consult with a concerned adult outside your family who knows your wishes and values.

Similar to an Agent, a surrogate must follow any directions or wishes expressed by the family member or friend for whom they are now making health care decisions. If no instructions or wishes are known, the surrogate must in good faith make decisions based on the person's best interests. In determining a person's best interests, the surrogate must consider the person's personal values.

Although families in these situations usually try to make good decisions for a loved one, you should still consider putting your wishes in writing in a Power of Attorney for Health Care and a Living Will. This way you can choose the person or persons in whom you have the greatest trust to make health care decisions for you. You can also avoid the possibility that members of your family will disagree over your care, causing friction for them at a difficult time and possibly requiring them to go to court. It will also enable your family to know for certain how you want to be cared for, rather than have to guess your wishes.