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Thursday, 22 March 2012

THE TGB ELDERLAW ATTORNEY: Advance Directives

Orrin Onken Orrin Onken writes the twice-monthly TGB Elderlaw Attorney column in which he discusses legal issues of concern and interest to elders. He is an elderlaw attorney licensed to practice in the state of Oregon. He also keeps his own blog, Oregon Elder Law, and you can read more about his background here. All his Time Goes By columns are collected in this list.

category_bug_elderlaw As I make my way toward the grim reaper, there may come a time when I become so sick that I cannot communicate with those around me. My inability to communicate might be due to a temporary illness, but it is most likely to happen during the last days of life. When I can no longer communicate, I have an advance directive that will talk to family and care givers for me.

An advance directive is a legally enforceable document that manages my medical care when I cannot. As long as I can still lift my head from the pillow and make my wishes known, my advance directive is scrap paper but when I can no longer do that, my advance directive controls who makes decisions for me and what treatments I receive.

The name “advance directive” probably comes from the fact that the document is signed in advance of final illness and gives directions, but that isn’t the only name the document goes by.

When documents with a similar purpose first appeared they were called “living wills.” Lawyers don’t like to stray far from what they know. They called it a will because it looked like one.

The next name to come around was a “health care power of attorney.” Once again, lawyers took something they knew, the power of attorney, and adapted it for another purpose. The document has also been called a personal directive, advance decision, health care proxy and probably a few other things.

Maybe the name “advance directive” will stick, but don’t count on it. No matter what they are called, all these documents all do the same thing: they provide family and care givers with instructions for how we want to be treated at the end of life.

The most important part of an advance directive is the appointment of a health care representative. A health care representative makes health care decisions, including decisions about when to pull the plug, when you can’t make them yourself.

This person is the advocate for your wishes when you can’t advocate on your own. In my advance directive I named my spouse as my health care representative. I have told her what I want at the end of life and I trust her to make decisions about my care that respect my wishes.

The second most important part of an advance directive is instructions to your medical providers about the kind of treatment you want or don’t want. These “directives” are addressed to your doctor. My sister is a doctor and I have never known her to take directions, but I filled out this part of my advance directive anyway.

I didn’t have to. I could have stopped after appointing my spouse my health care representative, thereby leaving everything up to her. I can fill out all or part of an advanced directive and, if it is properly signed and witnessed, the part filled out will be legally enforceable.

If you want or don’t want certain kinds of medical intervention at the end of life and you don’t have my sister as your doctor, you make those wishes happen by putting them in your advance directive.

Once you’ve named a health care representative to advocate for you and you’ve told the medical profession what sort of care you want, the heavy lifting is done.

One of my favorite advanced directives comes from a nonprofit called Aging With Dignity. It is called Five Wishes [pdf] and may be filled out online. This advanced directive is named for five common wishes about dying.

Like all advance directives, it asks you to name a health care representative and give directions about end-of-life care. It goes on to ask how much pain relief you want (we are talking heavy drugs here), what sort of surroundings you want to die in and what you want your loved ones to know.

The Five Wishes document meets legal requirements for an advanced directive in 42 states, but not here in Oregon where I live. I encourage you to find and use the form that is most common in the state where you live.

You need to take your advance directive with you to the hospital when you go in for treatment and have the nurse or social worker scan a copy of the document into your file. The hospitals don’t like to deal with unfamiliar documents. Don’t stress them out. Bring them what they are used to seeing in your community.

Advance directives can be enforced by the courts if they are filled out and witnessed (or notarized) properly, but court is not where you want to go. If you pay attention to the instructions, particularly those concerning witnesses, you have set the stage for end of life care without resort to lawyers.

Some families are so litigious that no document will keep them out of the courthouse but for most of us, an advance directive provides the framework for end of life care that is lawyer-free.

The advance directive is the only legal document that I recommend for everyone. Most legal documents have risks and rewards that must be balanced. The advance directive, however, presents very little risk and big rewards. The end of life is a time for your family to take care of emotional and spiritual matters, not make appointments with lawyers.

A properly signed and witnessed advance directive does as much as a person can do to ensure that the details of your dying do not end up at the courthouse.

[EDITORIAL NOTE: Is there an elderlaw topic you would like Orrin Onken to discuss? Leave your suggestion in the comments below and it may turn up in a future column. Remember, Orrin cannot advise on specific personal legal issues.]


At The Elder Storytelling Place today, Johna Ferguson: It's All in the Family


Posted by Ronni Bennett at 05:30 AM | Permalink | Email this post

Comments

Wonderful article. Thank you.
I want to understand types of trusts. I live in a state that probates (I don't understand probate either) at a very low amount. Will a trust help if my estate is much larger than the said amount for probate?

This might not be 'elder
law', but it is worth asking.
How would AARP members go about removing Barry Rand, or any other board member, from the AARP board?

My husband and I are of modest means. A small house (paid for) and a modest savings. We have wills naming the oldest of our three children as executor. When my mother passed away, one of my siblings removed EVERYTHING from the home although she was not named in the will. We did nothing - it was just stuff.
when my mother in law was diagnosed with dementia, we discovered my husband's 2 siblings had talked my mother in law into removing us from her will. We watched my mother in law moved 6 times in her last year of life, each time to a seedier home than before. We watched the siblings purchasing RV's, big cars, etc. There was nothing we could do to improve our mothers care or surroundings. We never dreamed any of these people could act this way. What can people of modest means do - in lieu of a will - to ensure that this does not happen in our own family.

This is an issue, at 63, I keep putting off thinking I have plenty of time. Both of my adult kids have been reluctant in the past to discuss what they need to do under end of life conditions should my wife not be here to handle things for me.

The fact that the advanced directive puts some decisions in the hands of my doctor will remove some of the pressure my loved ones won't have to deal with.

I'm so glad Mr. Onken has become a part of TGB's blog to share information and help guide those of us whose knowledge of such topics is so limited.

I can't stress enough the importance of getting to an elder care attorney before bad things start to happen. We did so 5 years ago & then informed our kids what we had done. We also named (with the bank) the oldest kid as a person with access to our safety deposit box. She has a key as well. For my own mother (age 96 with few assests) dictated her wishes to my sister & me, and we documented it all & it's in safe keeping. My mom insisted on this & we listened. Today's post is really helpful. Thanks. Dee

I have had living will and medical power of attorney forms filled out for many years. My daughter and my doctor have copies and a copy is in my medical file. My daughter is the person assigned on my Medical Power of Attorney.

I have discussed my wishes with my children, family members and my medical providers. It is important to discuss your wishes with your all of your loved ones so there are no problems arising over pulling the plug, etc.

One thing not mentioned by Mr. Onkin is where to keep your directives. The recommendation to me was to buy a plastic envelope and put all end-of-life papers in it and keep it in your freezer. EMT personnel will look there if the ambulance is called and you are unable to tell them where to look. The special envelops comes with a magnet to put on your freezer saying "Matters Of Life and Death Inside". I purchased mine from 'Funeral Consumers Alliance' (A national organization) and I would imagine any mortuary could obtain one for you.

In Arizona there is a special form for EMTs because if they hook you up in the ambulance you can't be taken off of life support at the hospital. It is orange and the EMT will recognize it.

In Arizona you can get living will and medical power of attorney forms from the state. Each state has it's own requirements and it's wise to start there when you are going to fill out forms. Of course your attorney will already know the laws of your state, but it isn't necessary to hire an attorney. If you fill out the forms and have them notarized they are legally binding.

Perhaps I should add that the forms are legally binding in Arizona, but you should check with the requirements in your state.

Darlene's correct as well, but in my case with a special needs spouse, it was better to use an attorney to be certain we had thought of everything. A legal aid society will probably be able to help too. :)Dee

We wrote a living will but need to redo our will as our situation has changed-- as in my mother is no longer alive and I would like some money to go to my brother if he is still alive and both my husband and I were killed.

Ia this living will for Oregon in the right form? Oregon Living Will

We did our own will,using a form from a software program, the last time and had it notarized. I don't worry about my kids misusing anything because of how they live their lives but I have concerns on how I would protect our rescue cats. I can't bear the thought that they would be put down or sent to a shelter. Both kids families already have the number of pets they want. It's tough, because as we age, as our pets become our kids in many ways. I can well understand why some people leave it all to them to assure they can live out their natural lifespan!

Thank you, Mr. Onken. Your column held my interest to the very end and I learned many things I did not know.

My husband and I both have Directives and have given our primary physicians each a copy and we have a copy where our children know exactly where to find it.

I look forward to your future posts and thanks again.

Please, everyone, do keep in mind that any legal "advice" or information from readers in comments are not necessarily factual and do not necessarily apply in the state where you live.

And remember, too, that information about a given U.S. state may not apply at all in any other state.

Thank you. I have an "advance directive" but it needs to be rewritten in more detail. And I am sharing with eldest son who is single with many health issues and needs this sort of thing too.

Ronni, when you first introduced Mr. Onken, letting us know of his participation in Time Goes By, this topic of Advance Directives was the one of major interest to me. This today is so pertinent, full of info. Am in my late 70s, it's time to stop procrastinating and let my family and doctor know my wishes. Thank you so much for this help.

My doctor gave me the Five Wishes advanced directive so I assume it is acceptable in Colorado. It is the best readily-available - meaning no lawyer required - advanced directive I've come across.

I too would like to know about trusts.

Smart idea about putting a directive in freezer, along with song you wish to be played.

I mean, what if someone played a song by "Twisted Sister?"

Maybe someone likes Twisted Sister

I'm just saying.

Thank you, Mr. Onken and Ronni. I have an advance directive, but this reminded me that I should do another one that's legal and familiar in Texas where I spend 4 - 5 months each Winter. Those of us elders who are seasonally mobile need protection when in strange lands.

Thank you everyone for your comments. It would not hurt my feelings if the term "living will" disappeared. A will disposes of property after death and has no power while your are alive. An advance directive manages health care while you are alive. It is useless once you are dead. Calling an advance directive a will--living or otherwise--makes it all so confusing.

It helped me considerably to have my Mother's Advanced Directive. She filled it out three years ago when she broke her hip. She became seriously ill in February. When I arrived I produced the document which helped direct Mother's care.
I have filled one out naming my sister as my representative because she lives in the same state and is physically closer to me than any other family member.
I like the way Arizona has an Orange DNR to place on the refrigerator. We kept looking for something like that in Oregon where my Mother lived but the paper they put on the refrigerator could be easily overlooked.

Great advice!
Now - how to get the 70% of people over 65 who have NOT filled one out to take responsibility for themselves and make it easier on those left behind.

Hello Mr. Onken,
My situation is a bit different. There are no children, spouse or living relative to hand this off to.

Would you suggest allowing the attorney who drafts my power of attorney also be named as executor or the designated person to leave these documents with?

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