Advance Directives FAQs

Introduction

Q: What is an Advance Directive?
Q: Why is there a need for Advance Directives?
Q: What are the advantages of having an Advance Directive?
Q: Do I have to have an Advance Directive?
Q: Are there different types of Advance Directives?
Q: Can I have more than one type of Advance Directive?

Durable power of attorney for health care

Q: What is a durable power of attorney for health care?
Q: Is a durable power of attorney for health care legally binding?
Q: Who is eligible to have a durable power of attorney for health care?
Q: When can the patient advocate act in my behalf?
Q: How might I become unable to participate in medical or mental health decisions?
Q: Who determines when I am no longer able to participate in these decisions?
Q: What if my religious beliefs don’t allow an examination by a doctor?
Q: What powers can I give a patient advocate?
Q: Will my patient advocate have the power to handle my financial affairs?
Q: Can I give my patient advocate the right to withhold or withdraw treatment that would allow me to die?
Q: Can I authorize my patient advocate to decide to withhold or withdraw food and water that is given to me through tubes?
Q: Do I have the right in the document to express other wishes?
Q: What are my options about mental health care?
Q: What are my options regarding organ donation?
Q: Is it important to express my specific wishes in an advance directive?
Q: What is the duty of my patient advocate?
Q: Are there exceptions?
Q: What if I don't express any specific wishes concerning medical treatment?
Q: Will a hospital or nursing home allow my patient advocate to review my records?
Q: Whom can I choose as my patient advocate?
Q: Can I choose a second person to take on the job of being my patient advocate, in case the first person is unable to do that?
Q: What must I do to have a valid durable power of attorney for health care?
Q: What does a patient advocate need to do before acting in my behalf?
Q: Is there a required form for the document?
Q: Must I use a fill-in-the-blanks form?
Q: Once I sign a durable power of attorney, may I change my mind?
Q: Are there different rules for mental health treatment?
Q: Can my patient advocate refuse to act in my behalf?
Q: What if there is a dispute when my patient advocate is making decisions for me?
Q: What if I regain the ability to take part in medical or mental health decisions?
Q: What if I have no one to name as my patient advocate?

Living will

Q: What is a living will?
Q: When will a living will take effect?
Q: How is a living will different from a durable power of attorney for health care?
Q: What might a living will say?
Q: Is a living will legally binding on health care providers?
Q: Is it worth having a living will?
Q: Can I have both a durable power of attorney for health care and a living will?
Q: What are the requirements for a living will?

Do-not-resuscitate declaration

Q: What is a do-not-resuscitate declaration?
Q: For whom might such a document be particularly useful?
Q: Must I be terminally ill before signing a DNR declaration?
Q: Are such documents legally binding?
Q: Are there standard forms for a DNR declaration?
Q: Can my patient advocate sign the form instead of me?
Q: Is it necessary to have a DNR declaration if I have a durable power of attorney or living will?
Q: What else can be done to prevent unwanted resuscitation?
Q: What about when I am in a nursing home or hospital?

General information

Q: In general, what should I do before completing an advance directive?
Q: Should I also talk with my doctor?
Q: Are there issues to which I should give particular attention?
Q: What should I do with an advance directive after it is signed?
Q: What about a do-not-resuscitate declaration?
Q: After I sign one or more advance directives, should I continue to discuss the issue of my care?
Q: When should I review an advance directive?
Q: What should I do if I write a new advance directive?
Q: What are the responsibilities of health care facilities?
Q: Will the hospital or nursing home honor my advance directive?
Q: What if I decide not to have an advance directive?

Introduction

Q: What is an Advance Directive?
A: An advance directive is a written document made before an incident in which you lose the ability to make medical decisions for yourself. An advance directive allows you to put in writing specifically what type of medical care you want and whom you want to facilitate your wishes.

Q: Why is there a need for Advance Directives?
A: Years ago, many people passed away in their own homes. However, today, there is a much greater chance of a person dying in a hospital or a nursing home.
The treatment choices we face have increased due to growing technology, and improved public health has increased life expectancy. Therefore, certain decisions may have to be made that relate to our care, at a point in our lives and health where we can no longer convey our wishes to others.

Q: What are the advantages of having an Advance Directive?
A: By having an advance directive, you are provided some reassurance that your personal wishes regarding your medical and mental treatment will be honored, if it comes to a point where you are not able to express them. Also, having an advance directive may prevent the need for a guardianship, which could be imposed through the probate court.

Q: Do I have to have an Advance Directive?
A: No, you do not have to have an advance directive. The decision to have an advance directive is completely voluntary. You cannot be forced to have one by any family member, hospital staff member and/or insurance company employee. Furthermore, no one can tell you what the document has to say if you decide to write one. A hospital, nursing home or hospice organization is not allowed to deny you service based on whether or not you have an advance directive.

Q: Are there different types of Advance Directives?
A: Yes, there are different types of advance directives. A durable power of attorney for health care, a living will, and a do-not-resuscitate declaration are three types of advance directives.
Also, there is a declaration of anatomical gift, which goes into effect when you die.

Q: Can I have more than one type of Advance Directive?
A: Yes. You can choose to have any number of advance directives, or you can have none at all.

Durable power of attorney for health care

Q: What is a durable power of attorney for health care?
A: A durable power of attorney for health care, also known as a health care proxy or a patient advocate designation, is a document in which you assign another individual to make medical treatment and related personal care decisions for you.
In addition, you can choose to give your patient advocate the power to make decisions regarding any mental health care that you may need.
Also, you can allow your patient advocate to donate specific organs or your entire body upon your death.

Q: Is a durable power of attorney for health care legally binding?
A: Yes, it is legally binding.

Q: Who is eligible to have a durable power of attorney for health care?
A: To be eligible to have a durable power of attorney for health care, you must be at least 18 years old, and you must understand that you are giving another person power to make certain medical decisions for you, if you become unable to make them.

Q: When can the patient advocate act in my behalf?
A: Only when you become unable to take part in medical treatment decisions yourself is your patient advocate able to make those decisions for you. You make your own decisions until that time.
If you choose to give your patient advocate the power to make decisions about your mental health treatment, he/she is only allowed to act if you cannot give informed agreement to mental health treatment.

Q: How might I become unable to participate in medical or mental health decisions?
A: If, for example, you had a stroke or were knocked unconscious in a car accident, you might temporarily lose the ability to make or communicate certain medical decisions. You could suffer permanent loss through a degenerative condition, such as dementia.
Also, you might become unable to make mental health decisions if you are diagnosed with a condition such as severe depression or schizophrenia, because those conditions could affect your mood or thought process.

Q: Who determines when I am no longer able to participate in these decisions?
A: The doctor that is responsible for your care and one other doctor or psychologist who examines you will decide when you are no longer able to participate in these medical decisions.
After examining you, a doctor and a mental health professional (physician, psychologist, registered nurse or masters-level social worker) each must make the decision in respect to mental health treatment. In the document, you may choose the doctor and mental health professional you want to make this decision.

Q: What if my religious beliefs don’t allow an examination by a doctor?
A: If this is the case, in your durable power of attorney document, you should write that your religious beliefs don’t allow an examination by a doctor. You should also make it clear in your document how you want it decided that you are unable to participate in health care decisions.

Q: What powers can I give a patient advocate?
A: You can give a patient advocate the power to make those personal care decisions you normally make for yourself. For example, you can give your patient advocate power to consent to or refuse medical treatment for you; arrange for mental health treatment, home health care or adult day care; or admit you to a hospital, nursing home or home for the aged.
You can also allow your patient advocate to donate your organs or body, which would be effective upon your death.

Q: Will my patient advocate have the power to handle my financial affairs?
A: You can give your patient advocate the power to set up medical and personal care services, and to pay for those services using your funds. However, your patient advocate will not have the general power to handle all your property and finances.
If you would like another person to handle all your property and financial affairs if you become unable to, you could seek a lawyer's help to draft a durable power of attorney for finances or a living trust.

Q: Can I give my patient advocate the right to withhold or withdraw treatment that would allow me to die?
A: Yes, but you must state in a clear and convincing way that the patient advocate is authorized to make such decisions, and you must acknowledge that these decisions could or would allow your death.

Q: Can I authorize my patient advocate to decide to withhold or withdraw food and water that is given to me through tubes?
A: Yes. If you want to give your patient advocate this right, describe in the document the specific circumstances in which he or she can act - terminal illness, and permanent unconsciousness, for example.

Q: Do I have the right in the document to express other wishes?
A: Yes. For example, you might express your wishes regarding other types of care you want during terminal illness. You could also express a desire not to be placed in a nursing home and a desire to die at home. Your patient advocate has a duty to try to follow your wishes.

Q: What are my options about mental health care?
A: You have a choice whether or not to give your patient advocate any powers dealing with mental health care.
If you do choose to give your patient advocate powers dealing with mental health care, you should state clearly which powers he or she has. Some powers to consider are outpatient treatment, hospitalization, administration of psychotropic medication, and electro-convulsive therapy (ECT).
You can also provide more detail; for example, what hospital you prefer and what medications you want or don’t want.

Q: What are my options regarding organ donation?
A: You can choose whether or not to give your patient advocate this power.
If you would like your patient advocate to have this power, you can make clear which organs you want donated, or whether you would like your whole body to be donated. You can also make it clear where or to whom you would like your organs to be donated.
You can also complete the separate form in this booklet, Declaration of Anatomical Gift. If you state your wishes both in the durable power of attorney and in the declaration of anatomical gift, make sure your wishes are the same in both documents.

Q: Is it important to express my specific wishes in an advance directive?
A: Your wishes cannot be followed if no one knows what they are. It also might be difficult for your advocate to make a decision for you without guidance. If you have specific desires, make these clear to your patient advocate in talking to him or her. Also consider including these wishes in the document.

Q: What is the duty of my patient advocate?
A: Your patient advocate has the job of taking steps to follow your instructions and your wishes that are expressed while you were able to take part in the discussion.

Q: Are there exceptions?
A: A mental health professional can choose not to honor your wishes regarding a specific mental health treatment, location or professional, if there is a psychiatric emergency that puts your life or the life of another person at risk.

Q: What if I don't express any specific wishes concerning medical treatment?
A: In this instance, your patient advocate would then have to make a decision about your medical care, in what he or she sees as being your best interest.

Q: Will a hospital or nursing home allow my patient advocate to review my records?
A: Yes, it will. A patient has the right to look at and copy his or her hospital or nursing home records. Your patient advocate has the same right you have, once you are unable to take part in treatment decisions

Q: Whom can I choose as my patient advocate?
A: You can choose any person age 18 or older as your patient advocate. You can choose your spouse, an adult child, a friend or another individual. However, you should choose someone you trust, who can handle the responsibility, and who is willing to take on the job of being your patient advocate.
It is also a good idea to speak with the individual you plan to make your patient advocate before you complete and sign the document.

Q: Can I choose a second person to take on the job of being my patient advocate, in case the first person is unable to do that?
A: Yes. It is a good idea to do that.

Q: What must I do to have a valid durable power of attorney for health care?
A: The statement must be in writing, signed by you, and witnessed by two adults.
There are certain restrictions on who can be a witness. For example: you need witnesses who are not family members, not your doctor or possible patient advocate, not an employee of a health facility or a program where you are a patient or client.

Q: What does a patient advocate need to do before acting in my behalf?
A: Before the patient advocate can act in your behalf, he or she must sign an acceptance. This can be done at the time you complete the document or at a later time.

Q: Is there a required form for the document?
A: No, there is not. There are a number of organizations that provide free forms.
Make sure in completing any document you type or print clearly.

Q: Must I use a fill-in-the-blanks form?
A: No, you do not have to. You may write out your own document or have a lawyer draft a document for you.

Q: Once I sign a durable power of attorney, may I change my mind?
A: Yes, you may. You may want to name a different patient advocate or change the expression of your wishes. As long as you are of sound mind, you can sign a new document and then destroy the old one.
Regardless of your physical or mental condition, you can cancel the durable power of attorney by indicating in any way the document does not reflect your current wishes. Also, any spoken wish to have a specific treatment that would extend your life must be honored by a patient advocate, even if the wish challenges a written directive.

Q: Are there different rules for mental health treatment?
A: Yes, there are. You can choose to give up your right to immediately withdraw the durable power of attorney to the extent of mental health treatment. In this case, your withdrawal is effective 30 days after you make your intent known.

Q: Can my patient advocate refuse to act in my behalf?
A: Yes. A patient advocate can cancel his or her acceptance at any time. If so, whomever you have named as the successor, or next in line to become your patient advocate, would become your patient advocate.

Q: What if there is a dispute when my patient advocate is making decisions for me?
A: If an interested person disputes whether the patient advocate is acting in your best interests, or has the authority to act in your behalf, the interested person may appeal the local probate court to resolve the dispute.

Q: What if I regain the ability to take part in medical or mental health decisions?
A: The powers of your patient advocate are suspended during the time you are able to take part in decisions.

Q: What if I have no one to name as my patient advocate?
A: You can still complete a living will or a do-not-resuscitate statement, or both.

Living will

Q: What is a living will?
A: A living will is a written document in which you inform doctors, family members and others what type of medical care you wish to receive should you become terminally ill or permanently unconscious.

Q: When will a living will take effect?
A: A living will only takes effect after a doctor diagnoses you as terminally ill or permanently unconscious, and determines that you are unable to make or communicate decisions about your care.

Q: How is a living will different from a durable power of attorney for health care?
A: Although there can be overlap, the focus of a durable power is on who makes the decision; the focus of a living will is on what the decision should be.
A living will is limited to care during terminal illness or permanent unconsciousness, while a patient advocate may also have authority in situations of temporary disability.
A durable power of attorney for health care may be more flexible because your patient advocate can respond to unexpected circumstances, but a living will might be honored without the presence of a third person making the actual decision.

Q: What might a living will say?
A: You could express your wishes in general terms - "Do whatever is necessary for my comfort, but nothing further." Or, "I authorize all measures be taken to prolong my life."
You might instead state whether or not you wish to receive specific medical interventions, such as a respirator, cardiopulmonary resuscitation (CPR), surgery, antibiotic medication, and blood transfusions. You could allow experimental or non-traditional treatment.
Whichever approach you choose, you should express your wishes concerning food and water that is given through tubes.

Q: Is a living will legally binding on health care providers?
A: Michigan has not passed a law that legally binds living wills on health care providers, even though 47 states have statutes that do give living wills legal force. However, based on a Michigan court decision, there is an argument that living wills are indeed binding in the state. No one, though, can provide absolute guarantee that your wishes will be honored.

Q: Is it worth having a living will?
A: Yes, it is. It is especially important to have a living will if you don't have a durable power of attorney for health care. Your wishes cannot be honored if they are not known.

Q: Can I have both a durable power of attorney for health care and a living will?
A: Yes. Your patient advocate can read your living will as an expression of your wishes. The living will might also be valuable if your patient advocate were unavailable when a decision needed to be made.If you have both documents, make sure your wishes expressed in the documents are consistent.

Q: What are the requirements for a living will?
A: There are no formal requirements, since there is no state law regarding it. But it is strongly recommended the document be entitled, "Living Will,” be dated, signed by you, and signed by two witnesses who are not family members.

Do-not-resuscitate declaration

Q: What is a do-not-resuscitate declaration?
A: A do-not-resuscitate declaration (DNR declaration) is a written document in which you express your wish that if your breathing and heartbeat stop, you do not want anyone to attempt to resuscitate you.

Q: For whom might such a document be particularly useful?
A: Someone who might wish to sign a DNR declaration is a hospice patient who is at home to die as peacefully as possible.

Q: Must I be terminally ill before signing a DNR declaration?
A: No, you do not have to be. For example: you may be in good health, but still not want to be resuscitated should your heart and lungs fail.

Q: Are such documents legally binding?
A: Yes, they are. A Michigan law provides these documents are valid in settings other than hospitals or nursing homes.

Q: Are there standard forms for a DNR declaration?
A: Yes, there are. One form provides spaces for your doctor to sign, for you to sign, and for two witnesses to sign. There is an alternate form for individuals who have religious beliefs against using doctors.

Q: Can my patient advocate sign the form instead of me?
A: Your patient advocate can sign the form instead of you, as long as he or she has the authority to act.

Q: Is it necessary to have a DNR declaration if I have a durable power of attorney or living will?
A: It might be. A durable power of attorney for health care and a living will only take effect when you are unable to take part in treatment decisions. If you are competent or able to until the moment your heart and breathing stop, these documents will never take effect.

Q: What else can be done to prevent unwanted resuscitation?
A: To prevent unwanted resuscitation, ask your relatives in advance not to call 9-1-1 or the police if your breathing should stop. If you are under the care of a registered nurse, she or he has the authority to pronounce that you are dead.

Q: What about when I am in a nursing home or hospital?
A: This can be different. These facilities can set their own policies about resuscitation. Upon admission to a facility like this or after admission, you should express your wishes on this issue and ask that these wishes be reflected on your medical chart.

General information

Q: In general, what should I do before completing an advance directive?
A: First of all, take your time; these can be difficult decisions. Think about what treatment you would like to receive under different situations in the future. Consider whom you might choose as your patient advocate, and make sure that person is willing to serve as your patient advocate.
Also, discuss the issue with family members or even a spiritual leader if you feel it would be helpful.

Q: Should I also talk with my doctor?
A: Yes; this is very important to do. Have a discussion about the positives and negatives of various types of treatment. Express your general wishes and make sure the doctor is comfortable with carrying them out.

Q: Are there issues to which I should give particular attention?
A: Yes, there are. For instance, many people have strong feelings about food and water being given to them through tubes. If you become unable to swallow, food and water can be supplied by a tube down your throat, or a tube surgically placed into your stomach. You should most definitely consider in what situations, if any, you wish such procedures to happen or not happen.

Q: What should I do with an advance directive after it is signed?
A: After the advance directive is signed, give the original durable power of attorney for health care to your patient advocate (or at least make sure she or he knows where it is). Also, give a photostatic copy to your doctor, and last, keep a copy for yourself. Also, let people know whom you have chosen as your patient advocate.
Keep the original copy of a living will. Also, give a copy to family members who are close to you, a friend who is close to you, and your doctor. Keep a list of all of these people.
Your doctor should make the documents part of your medical record. If you enter a hospital or nursing home, try to make sure that the facility has a copy.

Q: What about a do-not-resuscitate declaration?
A: You should always keep this declaration with you at home, and in plain sight. Also, give a copy to family members who might be with you at the time of your death.

Q: After I sign one or more advance directives, should I continue to discuss the issue of my care?
A: Yes, you should. You should sit down with the person you have chosen to be your patient advocate. You need to make sure your patient advocate has a very clear understanding of your wishes. If some time has passed since you signed the document, discuss the issues again.
It is almost always a good idea for you to make relatives and friends aware of your desires.

Q: When should I review an advance directive?
A: It would be wise to review your advance directives once a year, since medical technology is constantly changing and since there may be changes in your outlook. Upon reviewing it, you can decide to keep the document, write a new one, or have no advance directive at all.
If you decide to keep the advance directive, you can put your initials and the date on the bottom.

Q: What should I do if I write a new advance directive?
A: Whether you choose a different person to be your patient advocate or you change your wishes for care, you should try to get back copies of the old document and then destroy them. Then, distribute copies of the new document.

Q: What are the responsibilities of health care facilities?
A: Hospitals, nursing homes, hospice organizations and home health agencies receiving federal funds have an obligation to let incoming patients know about their rights to agree or not agree to treatment, including the right to have advance directives.
A health care facility cannot force you to sign an advance directive, nor refuse to care for you if you have signed one.
If they are given an advance directive by you, the hospital or nursing home must make it part of your medical record.

Q: Will the hospital or nursing home honor my advance directive?
A: Yes, the hospital or nursing home will likely honor your advance directive, as long as the facility has no reason to question how authentic the document is, or has evidence you are no longer able to take part in treatment decisions.
You should also know that even though you have an advance directive, there is no guarantee your wishes will be honored.

Q: What if I decide not to have an advance directive?
A: If you decide not to have an advance directive, decisions will still have to be made for you if you become unable to make them. Sometimes, a doctor or hospital will accept a spouse or child as an informal decision-maker. And in some situations, a family member has authority by law. At other times a proceeding to determine guardianship will have to be introduced in probate court.