An advanced health care directive could be one of two documents or a combination of those two documents. An advanced health care directive could be a living will, which is an instruction directive, or it could be a health care power of attorney, which is a proxy directive. Since I’ve been practicing law, most advanced health care directives are a combination of these two documents, being both an instruction directive and a proxy directive.
In advanced health care directive parlance, the “declarant” is the person who signs an advanced health care directive and who has the mental capacity to understand the nature of his act in signing the directive; in other words, the declarant must understand the general nature of the document that he is signing, for instance, a document that appoints my spouse to make health care decisions for me.
An advanced health care directive is only effective in certain circumstances. Most importantly, the declarant must be unable to make his own health care decisions. If Mr. Smith signs an advanced health care directive but Mr. Smith remains competent to make his own decisions, then Mr. Smith makes his own health care decisions. In fact, the law is written in such a manner that even if Mr. Smith were mentally incapacitated and even if he could barely express himself, perhaps he could only express himself through bodily movements, Mr. Smith retains the right to revoke his advanced health care directive at any time.
There is a strong predilection in the advanced health care directive act to implement the wishes of the declarant. Despite what some might think, a declarant retains control of his health care decisions even if he is no longer competent.
Over the years, I have had clients who believe that if they sign an advanced health care directive, they are renouncing their right to control their health care decisions. This is wholly untrue. An advanced health care directive is only effective if the declarant can no longer make his own decisions, and even if he cannot make his own decisions, he still has the right to revoke the directive at any time.
In addition to the declarant being unable to make his own medical decisions, an advanced directive is only effective to withhold or withdraw life-sustaining medical treatment if the declarant is in one of four health-related states. The declarant must be in a condition in which only experimental treatment could save him or in which the declarant is permanently unconscious or in which the declarant is terminally ill or in which the cost of the treatment being proposed to the declarant outweighs the possible benefit of the treatment. So, the declarant must be in very poor health and he must be unable to make his own decisions only then could the health care representative make decisions for the declarant.
An advanced health care directive must be signed by the declarant and witnessed by two people. Neither witness can be the health care representative. Or the directive must be signed by the declarant and the declarant’s signature must be notarized.
A living will is an instruction directive. A living will simply says how the declarant wishes his health care decisions to be handled. A living will might state, “If I am permanently unconscious, then I don’t want to be resuscitated if I am cardiac arrest.”
A proxy directive, or health care power of attorney, appoints a health care representative to make medical decisions for the declarant. A proxy directive might state, “If I am permanently unconscious, then I appoint my wife to make medical decisions for me.”
A typical advanced health care directive will be both an instructive directive and a proxy directive combined into one document. “If I am permanently unconscious, then I don’t want to be resuscitated if I am cardiac arrest and I appoint my spouse to make medical decisions for me.”
I suggest that a declarant draft their directive in broad terms, and not be very specific as to what he medical procedures he does or does not want. Since the declarant signs the directive when he is well (in most cases), a declarant doesn’t want to be too specific as to what procedures he would want in some hypothetical future medical state.