Advance Healthcare Planning
What is an Advance Directive?
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What is an Advance Directive?

By 

Jennifer Mcgee

Head of Legal at TrulyWill

TABLE OF CONTENTS

  1. Advance Healthcare Directive Definition
  2. Types of Advance Directives
  3. Who can make an Advance Directive?
  4. When does an Advance Directive come into effect?
  5. How to write an Advance Directive?
  6. What is included in the Advance Directive?
  7. How can an Advance Directive be revoked?
  8. Who should get a copy of Advance Directive?

When a person chooses to make a Living Will, along with the Medical/Healthcare Power of Attorney (POA), these two legal documents become an Advance Directive. 

The Living Will is paired with Healthcare POA outlines the intensive end-of-life medical care to be given to the testator (maker of the Advance Directive) and gives authority to another person to make decisions on their behalf.

Advance Healthcare Directive Definition

An Advance Directive is a more comprehensive document than a Living Will and Medical Power of Attorney. It doesn’t leave any scope for carelessness about the medical care and treatment of the testator.

The Advance Directive is hope in any mishap, it should be prepared when you are competent to make decisions concerning your health and medical treatment.

When a Living Will is combined with a Healthcare Power of Attorney (POA), they together are called an Advance Directive concerning the medical care and treatment of the grantor (maker of the Advance Directive). All these three Living Will, Healthcare POA, and Advance Directives are forms of Healthcare Directives. There are many other types of Healthcare Directives

Types of Advance Directives

Basically, there are two types of Advance Directives:

  1. Living Will

People tend to make a Living Will before any major surgery as it may leave them debilitated and unable to make health-related decisions. The USC Leonard Davis School of Gerontology has revealed in its study that Living Will saves your time and money significantly compared to those who do not have a Living Will.

Living Will is a legal document in which you can plan the critical care to be given if there comes a situation where you are unable to give directions or convey your wishes due to any illness, old age, or physical or mental injury. Living Will saves you from outside interference and influence while making decisions for your medical treatment.

  1. Healthcare Power of Attorney

The Medical/Healthcare Power of Attorney (POA) is a legal document that allows you to shift the legal authority to someone else to make decisions concerning end-of-life care or medical care, treatment options, surgery, etc., on your behalf.  

The person who makes the document of Healthcare POA is called the grantor/testator and the person authorized in POA is called the Attorney in fact or proxy/representative, or healthcare agent/surrogate.

  1. Psychiatric Advance Directive

This is not a type or species of an Advance Directive but another version of the Advance Directive to be specifically used in mental illness. 

Who can make an Advance Directive?

In most States, the essential to making an Advance Directive is that anyone can make these documents:

  1. Have attained the age of majority 
  2. Is of sound mind, meaning thereby that he knows the legal consequences of making these documents.

When does an Advance Directive come into effect?

The Advance Directive comes into effect as soon as you sign it but you can change or modify it at any point in time. The Advance Directive will be referred by the care providers and doctors only when the grantor becomes incapacitated. 

Note: In some states an Advance Directive doesn’t come into effect immediately on signing the form. You can find here your state-specific Advance Directives.

How to write an Advance Directive?

The laws regulating the Advance Directives may vary by state. Some states want witnesses, some want the document to be signed and notarized. You can find here your state-specific Advance Directives.

However, this should bear in mind that any person may act as a witness in your Advance Directive document except your Healthcare Proxy, anyone related to you by blood, adoption, and marriage, a person who is entitled to get a share in your estate, and the care providers.

What is included in the Advance Directive?

  • Your sign, names of witnesses, their signatures, etc.
  • Your every wishes to receive any treatment and care if he becomes incapacitated.
  • Details of the specific treatments to be operated on or not on your body etc.
  • If you want any life-sustaining treatment to prolong your life or you would not choose to employ any such treatment.
  • If you want caretakers or care employees to give you comfort.
  • If you want to prefer to go through any surgeries or procedures.
  • If the Do Not Resuscitate order is to be followed along with the Advance Directive.
  • Details of sources of finances and how much expenses are to be done on your care and treatment.
  • Donation of any organ or body tissue or whole body: Declaration of donation of the body organ, tissues, or entire body to any person or for scientific research, if you want.
  • Expense in your funeral or place to bury etc.
  • The seal of a notary public, if that’s required by state laws

How can an Advance Directive be revoked?

The Advance Directive can be changed, revoked, or canceled at any time by the grantor.

Who should get a copy of Advance Directive?

The grantor after completing the Advance Directive and complying with the state laws must keep the original copy at home in a safe place. He should then distribute copies to his Healthcare agents/proxies, his doctor or care providers, his family, friends, and close ones. 

The grantor should carry one copy with himself with the healthcare agent’s name and contact information on that. You can after completion of a valid Advance Directive register it on the U.S Advance Care Plan Registry.

Got Questions?

Hi, I’m Jennifer McGee.

Co-founder & Head of Legal at TrulyWill

Feel free to book a call with me to help you with your estate plan.

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What happens if someone doesn’t have an Advance Directive?
If someone doesn't have an Advance Directive then the family, friends, or loved ones will be burdened to decide on behalf of the grantor. You may receive medication, treatment, and care that you would not prefer.
What are the 2 most common forms of Advance Directives?
Advance directives generally fall into two categories i.e. living will and power of attorney for health care. There are also other documents that can supplement your advance directive like POLST, DNR, etc. You can choose which documents to create, depending on how you want decisions to be made.
Is Advance directive the same as Living Will?
A Living will is a type of Advance Directive, while an “Advance directive” is a single document in which a Living Will is combined with Healthcare Power of Attorney to address your future medical care. Living Wills are Advance Directives, but not all Advance Directives are Living Wills.
When are Advance Directives not followed?
Advance Directives are legally binding but your doctors can always refuse to comply with your wishes if they have an objection of conscience or consider your wishes medically inappropriate.
Who makes medical decisions if you are incapacitated & Advance Directive wasn't made?
In the absence of an Advance Directive the patient's legal representative (mandatary, if there is one. if there is no legal representative, the patient's married or civil-union spouse, or common-law partner.
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