Chapter 2 - Health Care Advance Directives: Powers of Attorney for Health Care and Living Wills
On this page:
- How to Complete the Health Care Advance Directive
- Information About DNR Orders
- Revoking the Health Care Advance Directive
- Information for Family Members and Friends Acting as Agents under a Power of Attorney for Health Care
- What Happens If You Do Not Have a Health Care Advance Directive: Surrogate Decision Making
When you need medical care, you have the right to make choices about that 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. This is called giving an advance directive. Advance directives not only protect your right to make medical decisions that affect your life but also help your family and physician by providing guidelines for your care.
There are two common types of advance directives: a Power of Attorney for Health Care and instructions regarding end-of-life care (these instructions are often referred to as a “Living Will”). A Power of Attorney for Health Care is a written document in which you can name a person, called an Agent, to act on your behalf and make decisions for you if you become unable to do so yourself. A “Living Will” refers to a set of written instructions that explain your wishes regarding end-of-life decisions in the event that you are unable to communicate with your doctor.
In thinking about these decisions, you may wish to speak to close family members and friends, your physician and to clergy if you choose.
You may write your own advance directive or you may use a pre-printed form. One form often used in Maine is called the Maine Health Care Advance Directive Form which is a pre-printed form from the Maine Hospital Association. This form is available at most hospitals. You may also get a copy of the Maine Health Care Advance Directive Form from the Department of Health and Human Services’ Office of Elder Services. This section describes that form and also gives general information about powers of attorney for health care and special instructions for end-of-life care. Since there are other pre-printed forms available, your form may look a little different from what is described in this book. It is important that any form you use be properly signed and witnessed, as described below.
The Maine Health Care Advance Directive Form allows you to do one or all of the following: create a Power of Attorney for Health Care; create special instructions for end-of-life care (commonly known as a “Living Will”); name your primary doctor; state your wishes about organ donation; and state your wishes about funeral and burial arrangements regarding funeral and burial arrangements. You may choose to fill out all parts of the form or only some of them. The Maine Health Care Advance Directive Form must be signed by you and witnessed by two competent adults.
The Form also includes a Do-Not-Resuscitate (DNR) directive and has instructions on how to complete that form. The DNR directive is described in more detail below. The DNR directive must be signed by you and a physician, physician assistant or nurse practitioner in order to be effective.
A Power of Attorney for Health Care lets you choose another person to make health care decisions for you right away or when you are too ill to make decisions about your own care. Whether you write your own Power of Attorney for Health Care or use of the Maine Health Care Advance Directive Form, you must sign the document and have it witnessed by two competent adults.
The person you choose to make your health care decisions is called your Agent. You should also name a Successor Agent 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.) Maine law does not allow an owner, operator or employee of a residential long-term health-care facility in which a person is living to be an Agent for that person under a Power of Attorney for Health Care unless he or she is a family member.
The Agent must make decisions according to any instructions you have given and wishes you have made known while competent and must 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 the 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 they are willing and able to act as your Agent. Be sure to tell that individual you are naming them in the document 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 if 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 competent or able to express yourself unless you have indicated otherwise.
This document is commonly called a “Living Will” and it allows you to express your wishes about end-of-life decisions in the event that you can no longer communicate with your doctor. You may write your own document or you can use Part 2 of the Maine Health Care Advance Directive Form which is titled “Special Instructions”.
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. 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.
It is important that you have a doctor who understands your wishes, will honor them, and will work with the Agent named in your Power of Attorney for Health Care. Your physician is obligated to notify you if he or she is unwilling or unable to comply with your instructions. You may name your primary doctor in Part 4 of the Maine Health Care Advance Directive Form.
You may also wish to say whether or not you want to have your body, organs or tissue donated at death, either for transplant or as therapy for another person, or for purposes of research and education. You should discuss your wishes with members of your family so that they are comfortable with your decision and do not object to your wishes after you die. Organ donation is covered in Part 4 of the Maine Health Care Directive Form.
The Maine Health Care Directive Form includes a section where you may state your wishes and any preferences you have about funeral and burial arrangements. If you would like to make any of these wishes known, you should fill out Part 5 of the Form.
You may write your Power of Attorney for Health Care or Living Will or you may use the Maine Health Care Advance Directive Form. Whether you write your own or use a form, it must be signed by you and witnessed by two competent adults, preferably not your heirs. Do not have the person you name as Agent sign as a witness. People who travel out of state may want to have the document witnessed by a notary public since some other states have this requirement. Part 6 is the Signature Section of the Maine Advance Directive Form.
You should give a copy of the completed document to your doctor, to any other health care providers you have, to any place 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 directive to a relative or friend who is likely to be notified in an emergency and to your lawyer if you have one.
If you do not wish to receive cardiopulmonary resuscitation (known as “CPR”) by ambulance crews if your heart or breathing suddenly stops, you need to complete a special form called a Do-Not -Resuscitate (DNR) Directive which provides instruction to ambulance crews about your wishes. This form is now includes as Part 7 of the Maine Advance Directive Form. Part 7 includes instructions for completing the DNR Directive and also has information about health alert jewelry.
In order to be effective and have ambulance crews follow your wishes not to be resuscitated, the DNR Directive must be signed by you and a physician, physician assistant or nurse practitioner and shown to the ambulance crews. This form lets ambulance crews know that you do not drugs, machines or CPR to be used to restart your breathing or heart beat.
If you are in a hospital and do not wish to be resuscitated, your doctor must write an order called a “Do Not Resuscitate” order or DNR. That order is placed in your medical record at the hospital. If you have concerns or questions about CPR, discuss them with your doctor while you are well.
You have the right to cancel or change the advance directive at any time as long as you are still able to make decisions by writing on the form, on another piece of paper or completing a new form. Sign and date any of the changes that you make. Notify your doctor, your Agents and anyone else who got the first advance directive that you have changed or canceled it and give them a copy of the changed or canceled form and a copy of any new form you may fill out.
Information for Family Members and Friends Acting as Agents 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 the values of his or her religion or culture. You should talk to the older friend or relative while that person is still competent to be sure that you understand his or her wishes. If you feel that you cannot carry out that person’s instructions, then you should notify that person if he or she is still competent and withdraw as Agent.
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 Successor Agent named in the form.
If your older friend or relative is no longer competent and there is no Successor 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 the State agency which provides adult protective services. (See Chapter 8, “Resources.”)
Even if you do not sign a Living Will or Health Care Power of Attorney, 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”. n Maine, a surrogate may make health care decisions for an adult who does not have an Agent or Guardian (see Chapter 7 for a discussion of Guardianship) 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 parents who are available, then sisters and brothers, 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.