Planning for Life

You Don't Need a Lawyer for Your Advance Directive

Posted by Harry S. Margolis on May 19, 2020

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By Harry S. Margolis

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While we include health care proxies in all the estate planning packages we prepare for clients, you don't need a lawyer to get one. Hospitals and other medical facilities commonly hand out the form created by the Massachusetts Medical Society, which you can also download here.

Just print out the form, choose your agent and a successor, in case your original choice is unavailable, and sign the document before two witnesses.

Getting an Advance Directive in Massachusetts

Under Massachusetts law, once you have signed your health care proxy, if you are ever unable to communicate your own health care wishes, whether temporarily or permanently, your agent will be able to make health care decisions on your behalf. In Massachusetts, no one else, even a spouse, child or parent (except the parent of a minor child) can make health care decisions without first going to court to be appointed guardian. Some other states do permit family members to make such decisions in the absence of a health care proxy. (If you're not from Massachusetts, the National Hospice and Palliative Care Organization provides forms for all 50 states and the District of Columbia here.)

Key considerations about Advance Directives

Those are the basic rules and steps everyone needs to take. If we weren't aware of that before, the coronavirus makes it clear that anyone can need medical care any day. But here's the fine print:

  1. Agents. In Massachusetts, you can only name a single agent. The person you appoint may consult with others, but any decision has to be communicated to health care providers by a single identified person. This gives doctors and other providers a single point of contact and avoids confusion. You can (and should) name a successor or alternate agent in case the first person you appoint is not available.
  2. Witnesses. Your health care proxy must be witnessed by two individuals who cannot be the people you appoint as your agent or alternate. Your health care proxy does not have to be notarized. Interestingly, the temporary virtual notarization law permitting online notarization during the duration of the coronavirus pandemic only permits online witnessing if done in conjunction with notarization. So, if due to social distancing, you can't find two people to witness your proxy, a work around is to add a notarization section so it can be both notarized and witnessed online.
  3. Effective date. Your health care proxy does not become effective until a doctor determines that you are incapacitated and enters this information into your medical records.
  4. Revocation. You can revoke your health care proxy and appoint a new agent at any time. That is, you can do so as long as you have legal capacity. This sometimes becomes an issue when individuals have lost some capacity and a disagreement arises between them and their agent. If you revoke your power of attorney, your agent then can go to the probate court for a determination as to whether or not you have capacity to do so—but the burden would then be on the agent to show that you do not have capacity.
  5. Distribution. Make multiple copies of your proxy and distribute it widely—to your doctors, your agent, and alternate, your lawyer, and other family members. Scan it and disseminate the scanned version as well, so that your agent and others can have easy access. If you prepare a "go bag" to be ready in case you need to be hospitalized, include a copy. (For more information about "go bags" read this blog or listen to this webinar with health care advocate Dianne Savastano.)
  6. Medical directive. While your health care proxy appoints an agent to make and communicate health care decisions on your behalf, by itself it provides no guidance as to your values and wishes to be followed in making those decisions. You can do so in a number of ways, including by executing a medical directive, which can either be included in the health care proxy or be a separate document. A living will is a medical directive that simply involves withdrawal of life support. Your medical directive can be limited to such life and death situations, but also can be more broad. In Massachusetts, medical directives and living wills do not have the force of law. In some states, they do and must be followed. (All of these documents -- health care proxies, medical directives, living wills, and, in some states, durable powers of attorney for health care -- come under the rubric "advance directives.")
  7. Workbooks. It can be difficult to provide a lot of guidance in the abstract. Unless you're a doctor, you may have little idea in advance what kinds of accidents and illnesses may befall you and what the prognosis may be for each one. But a more complete statement of your values and wishes can help guide your agent. There are a number of workbooks available to help you make decisions and put them in writing for your agent's future reference. One is called Five Wishes which you can purchase for $5 here.
  8. The Conversation. Whether or not you prepare anything in writing, talk to your agent, and your whole family for that matter, about your wishes and goals. The Conversation Project provides tools for facilitating this conversation, which can be much broader than simply whether or not to continue life support. For instance, if you begin failing cognitively or physically, would you prefer to stay at home or move to assisted living? How would this work if your children live in other states? Talking these issues over in advance can be a big help to everyone involved.
  9. HIPAA Release. While there are a lot of good reasons to only appoint a single agent on your health care proxy, a limitation is that only your agent will have access to your medical records or be able to communicate with medical personnel. This can be difficult in an emergency or during a hospitalization, when you're there 24/7, but your agent can't be. We recommend that our clients also execute a HIPAA release permitting communication, but not decision making, by all the people the client would want to have this right. Here's one form available online.
  10. DNR. With a do not resuscitate order, we're entering a new realm of medical directives. Unlike all the other forms and tools discussed above, a DNR is a medical order signed by your doctor or other authorized medical person rather than by you. That said, your doctor should only sign the order based on a discussion with you or your health care agent and based on your determination that you do not want to be resuscitated should your heart stop or you stop breathing. These are only put in place for people who are terminally ill or otherwise near the end of life.
  11. MOLST. Similar to a DNR, a Medical Order for Life Sustaining Treatment is a medical order signed by a medical professional based on consultation with you about your health care wishes. It can be much more subtle than a DNR. For instance, you may normally want to be intubated and put on a ventilator if medically indicated, but not so if you have Covid-19, given the bad prognosis for most people in that case. That type of distinction can be made in a MOLST.

You can learn more about advance directives on a recent podcast on the Social Distance series sponsored by The Atlantic magazine.

 

Related Articles:

Document Execution in the Time of Coronavirus

What Happens in Massachusetts if You Don't have a Health Care Proxy?

Can You Name More Than One Person on a Health Care Proxy?

Got Questions? We've Got Answers

Topics: health-care decision making, HIPAA release, health care proxy, coronavirus

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