What Is an “Advanced Directive” and When Do You Need One?  

Also known as a health care directive or living Will, an advanced directive is a document specifying your wishes regarding advanced medical treatment. For example, do you want to be fed and hydrated when in a coma or are terminally ill? Do you want to receive defibrillation or CPR after a heart attack? Do you want to be put on a ventilator at any point? An advanced directive spells all of this out on standardized forms that healthcare providers must follow.     

A “DNR” or “Do Not Resuscitate” document can be seen as a type of advanced directive. However, you can list any and all acceptable medical treatments in an emergency or at the end of life. An Advanced Directive can be the opposite of a DNR, requesting that every possible option be tried to save or prolong your life.   

These documents aren’t just for elderly people. Anyone can end up on life support after a car crash or other tragic accident. An advanced directive allows the family to know whether the person in critical care wishes to be put on a ventilator for months or if they wanted their organs to be donated. Many people create an advanced directive during estate planning when they’re drafting their Wills, trusts, and other documents.   

If you are drafting a healthcare power of attorney, financial power of attorney, and other documents necessary to hand over control when you’re no longer able to make decisions, ask for an Advanced Directive to be added to the list. An advanced directive should include both a living Will and durable power of attorney for healthcare as well as HIPAA release for your designated agent. This ensures that the person making your healthcare decisions knows what you want done. The combined medical POA ensures that they have the legal authority to act on your behalf in accordance with your wishes.

A well written document will prevent someone from taking heroic measures when you would rather pass away peacefully. It also makes your wishes clear to your family, preventing your surviving family from being split over what to do in the face of a traumatic injury or illness. You should have your advanced directive instruction documents reviewed when you move to a new state to make sure your wishes are still valid — as hospitals, banks and other institutions may not honor an advance directive from another state, making all your efforts for naught.

When you die, the laws of the state you live in determine what is legally acceptable because state laws vary on what is required and allowed in an advanced directive. Therefore, you should have an attorney review your documents to verify that they’re valid in your current state. For example, states can vary in the number of witnesses or notaries required. In some cases, moving to a new state means the advanced directive you had witnessed by four people is not enforceable because it wasn’t notarized.

Problems can arise when you had spouses, family members, heirs, or power of attorney agents witness the document. Even more, a power of attorney document is hard to use if you have outlived nearly everyone on the list. Some people actually find it meaningless to take extreme measures to prolong their lives when their life partner dies before them.  

You need to have an advanced directive drafted when you’ve been diagnosed with dementia or a similar condition. If you do not have the documents created and signed when you’re considered competent, then whoever ends up as your guardian will be responsible for all your decisions. On this front, it is wise to include in your advance directives a Declaration of Guardian, as a financial power of attorney or healthcare power of attorney may not be sufficient. In a Declaration of Guardian, you can nominate those persons you would want, as well as those you would not want, to act as your guardian should you become incapacitated.

Advanced directives are essential if you’ve been diagnosed with a life threatening condition. If you need legal counsel to help you draft an advanced directive or other estate planning documents, the Amsberry Law Firm is here for you. Call us now at (210) 354-2244.

Written by Amsberry Law Firm

Amsberry Law Firm

Mr. Amsberry is board-certified in family and labor and employment law by the Texas Board of Legal Specialization. He is also active in family law, estate and elder law, and business law. He is a proven litigator who has argued before the United States 5th Circuit Court of Appeals and earned favorable outcomes in complex, precedent-setting employment and civil rights cases. He served as a reservist assistant judge advocate general in the U.S. Army and is a sought-after lecturer and speaker on a range of legal issues.