Advance Directives for Health Care

What is an advance directive for health care?

An advance directive for health care authorizes the person you choose (called a health care representative) to make health care decisions for you in case you are in an accident or are too ill or too disabled to make those decisions yourself. You can also use the advance directive to give your doctors and other health care providers instructions about the types of end-of-life care that you do want and that you do not want. An advance directive does not include the authority to make financial decisions. If you want to authorize someone to make financial decisions for you, you should sign a durable financial power of attorney.

When does the advance directive go into effect?

You are in charge of making your own health care decisions as long as you are able to do so. The health care representative does not have the power to make health care decisions for you unless your doctor determines that you are not capable of making and communicating health care decisions. The inability to make health care decisions may be temporary. You can start making your own health care decisions again if you regain the ability to do so.

What powers does the health care representative have after the doctor makes that determination?

The health care representative has the power to make most of the types of health care decisions that you could make for yourself. Some examples of those health care decisions are: Choosing a doctor, consenting to changes in medication, and making arrangements for long term care. You can use the advance directive form to authorize your health care representative to make decisions about life support and tube feeding. The health care representative is required to follow your wishes if your wishes are known.

There are certain decisions that a health care representative cannot make, such as a decision to place or keep the person who signed the advance directive in a mental health treatment facility. There is another form, called the Declaration for Mental Health Treatment, that a person who is concerned about future mental health treatment decisions can sign.

In 2009, the Oregon Legislature changed the law to give a health care representative the power to consent to hospitalize the person who signed the advance directive (including hospitalization in a locked unit) for a period of up to 18 days for treatment of behavior caused by dementia. This power will end on January 2, 2012, unless the legislature adopts a new law before then.

How long does an advance directive for health care last?

The advance directive will remain valid during your lifetime unless you revoke it or unless there is a specific time limit written in the advance directive. The health care representative's authority ends when you die.

Who will be the health care representative?

You choose the health care representative, who is usually a family member or friend who is familiar with your wishes concerning your medical care. You can also name an alternate health care representative to serve in case the first person you named is not able to or willing to act. Your doctor or someone who works for your doctor cannot be your health care representative.

There are spaces on the advance directive form for the health care representative and the alternate health care representative to sign showing that they accept the responsibility.

What are the benefits of having an advance directive for health care?

If you become unable to make and communicate decisions about your health care and you have an advance directive, then your health care representative will have the authority to make health care decisions for you. If you do not have an advance directive, someone may have to go to court and be appointed as your guardian in order to make health care decisions for you.

Confidentiality laws prohibit doctors from sharing health care information with anyone except the patient, unless the patient authorizes the doctor to share this information with someone else. In some cases, the result of these laws is that family members are left in the dark during a medical crisis involving a loved one. By appointing a health care representative in an advance directive, a patient authorizes his or her doctor to share health care information with the representative.

Are there disadvantages to having an advance directive for health care?

There will not be a court or a government agency watching over the health care representative to make sure that he or she is making necessary health care decisions. A doctor, a hospital, or another health care provider may refuse to accept the authority of the health care representative if there is a question about your ability to make your own health care decisions or if there is a disagreement among family members about important decisions.

Does an attorney have to prepare the advance directive for health care?

You do not need an attorney in order to complete an advance directive for health care. You do have to read and follow the instructions that are on the form. The form for the advance directive is in the Oregon statutes, and is available at most hospitals. You can also go to the Resource section of this web site and print out a copy of the advance directive for health care. The attorneys at The Elder Law Firm discuss advance directives and review the form with clients as part of the estate planning process.

Who should get copies of the advance directive for health care after it has been signed?

The advance directive will not be used if no one knows that you have signed it. You should keep the original advance directive with your other important papers. You should give copies of the advance directive to the people you named as your health care representative and your alternate health care representative. Give a copy to your primary doctor (and to any other doctor who is treating you on a continuing basis) and ask him or her to put the copy in your chart. If you are admitted to a hospital or a care facility, give a copy of the advance directive to the hospital or care facility.

Is the POLST form part of the advance directive?

The Physician Orders for Life-Sustaining Treatment (POLST) is a separate document intended to help implement your decisions about end-of-life care. The POLST is a medical order on bright pink paper, signed by your doctor or nurse practitioner or physician assistant. If you have a serious health condition, your doctor or nurse practitioner or physician assistant can use the POLST form to turn your wishes about life-sustaining treatment into specific written medical orders to be followed by emergency medical responders, hospital personnel, care facility staff, and other health care providers. In 2009, the Oregon Legislature established a statewide registry for POLST forms. A provider who signs a POLST form for you is required to send a copy to the registry unless you ask the provider not to send it. You can find more information about the POLST form and the POLST registry at www.polst.org.