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 you become ill or disabled in a way that makes you unable 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 power 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 or other health care provider 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 convulsive treatment and sterilization. Although a health care representative is authorized to admit the person who signed the advance directive to 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.

How long does an advance directive for health care last?

The advance directive will remain valid during your lifetime unless you revoke it or you sign a new advance directive [unless] or 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 other health care provider ( or someone who works for your doctor or other health care provider) 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.

The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and state confidentiality laws prohibit doctors and other health care providers from sharing health care information with the patient’s family members or friends, unless the patient authorizes the health care provider to share the information. 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 health care providers to share information with the representative during a time when the patient is not capable of making and communicating decisions about his or her health care.

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 family members disagree 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.

The Oregon legislature made changes to the advance directive form in 2018. The legislature also created a new form that you can use to appoint a health care represent without giving any instructions about your care. Those changes go into effect January 1, 2019. There may be other changes in the future. The attorneys at The Elder Law Firm discuss advance directives and review the forms with clients as part of the estate planning process.

Is an advance directive signed before January 1, 2019, still valid?

If you signed the earlier version of Oregon’s advance directive form before January 1, 2019, with the required witnesses, then that advance directive will still be valid on and after January 1, 2019. It is a good idea to review your advance directive from time to time and when there is a major event that may affect your health care decisions, such as the death of a close family member, a divorce, or a diagnosis of a significant medical condition. If your wishes have changed, you can revoke your current advance directive and sign a new one.

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 other health care providers who are treating you on a continuing basis) and ask to have the advance directive added to 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. You may want to scan your advance directive and store a digital copy in a cloud-based file or email it to yourself or a companion so it will be available when you travel.

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 health care 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.