Even among lawyers, there is a lot of confusion regarding which documents clients need when it comes to health care decision making. Adding to the confusion is the fact that the names of many of these documents—Living Wills, Advance Directives, Do Not Resuscitate Orders, Healthcare Proxies, and Healthcare Powers of Attorney—are often (incorrectly) used interchangeably.
So, I thought I would address each of these documents in turn to try and clear up some of the confusion.
Let’s start with a Power of Attorney. A power of attorney (“POA”) is any document in which a principal grants an agent the authority to legally act on behalf of the principal. For example, Joe Q. Client (the principal) may give his wife, Jane T. Client (his agent), power of attorney to handle business and financial affairs on his behalf. The POA Joe gave to Jane in this case is probably drafted very broadly to give Jane a lot of authority.
On the other hand, you may have executed a very limited POA if you have ever traded in a car to a dealership. The dealership will typically have you sign a POA that gives it the limited authority to sign any paperwork necessary to transfer title to your trade-in when they sell it to the next buyer.
But, POA’s aren’t just for financial transactions. Depending upon how it is drafted, your POA may include provisions for making health care decisions as well. If the POA document authorizes your agent (sometimes called your “attorney-in-fact”) to make health care decisions, then your agent may also have the authority to act as your health care proxy as well. More on that below.
When it comes to granting an agent or proxy authority to make health care decisions, the law breaks down those decisions into two basic categories. The first category is end-of-life decision making, namely the decision to provide, withhold or withdraw life sustaining treatment or artificially provided food and water. The second category includes non-end-of-life decisions, i.e. decisions that do not involve withdrawing life sustaining treatment or artificially provided food and water.
If you don’t appoint an agent pursuant to your POA to make healthcare decisions for you, then you may draft an Advance Directive. This is a document that appoints an agent, called a Health Care Proxy, to make decisions on your behalf. Unlike a POA, a Health Care Proxy appointed in an Advance Directive is limited to making health care decisions only, and does not have any financial authority. Stated differently, your agent under a POA may also qualify as a Health Care Proxy, but your Health Care Proxy appointed by an Advance Directive does not qualify as your financial Agent.
Finally, you may also have a Living Will, which deals only with end-of-life decision making. Your Living Will may be a separate, stand-alone document, or it may be incorporated into your Advance Directive. It states whether you want to receive life sustaining treatment and/or artificially provided nutrition and hydration if you are faced with a terminal illness. Terminal illness is defined as a situation in which the patient’s death is imminent, or whose condition is hopeless unless the patient is artificially supported through the use of life-sustaining procedures, in the opinion of a qualified physician.
A “Do Not Resuscitate Order” (commonly called a “DNR”) is also often confused with a living will. In a hospital setting, a patient will typically receive resuscitation efforts (such as CPR) unless a physician has given a “no-code” or “do not resuscitate” order. But such an order is not effective if the patient is discharged back into the community.
In that case, the patient must obtain a special doctor’s order called a DNAR (Do Not Attempt Resuscitation) which must be issued by the physician on a special form obtained from the Health Department. Unless the patient has a DNAR and is wearing a DNAR bracelet, an EMT is legally required to attempt resuscitation.
There are a number of issues regarding health care decision making which must be considered. Most people should have an Advance Directive and Living Will as part of their ordinary estate planning documents. We also recommend a separate POA to deal with financial decisions. Individuals faced with a terminal illness may also consider speaking to their physician about a DNAR order as well, if appropriate.
Advance Directives and Living Wills do not typically expire by the passage of time. They may, however, get “stale.” This is not a legal concern, but a practical one. For example, health care providers may be more hesitant to follow your wishes if they are set forth in a 25 year old living will. As a result, it’s wise to update them from time to time to keep them “fresh.”