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What are Advance Directives?

Having an advance directive is one of the most important things you can do in the event you are no longer able to make medical decisions on your own behalf. No matter how good your doctors are, or how much your family loves you, they simply cannot read your mind.

What Exactly are Advance Directives?

Advance directives are legally valid documents that allow you to express your wishes about the kind of medical treatments you want, and instruct a person of your choosing the ability to make health care decisions on your behalf before a situation arises where you are unable to do so. Advance directives are especially useful in medical emergency situations or near the end of a person’s life.

There are two main types of advance directives: the living will and healthcare power of attorney. States regulate the use of advance directives, and laws vary among the states. Some states permit family members to make all medical decisions for their incapacitated loved ones, while other states require clear evidence of the person’s own wishes or a legally designated decision-maker.

When Do Advance Directives Become Effective?

Advance directives become effective in most states after one of more doctors certify that (1) you are unable to make medical decision on your own, (2) you are in a condition specified in the state’s living will law, and (3) you meet other state requirements, as applicable.

To be valid, an advance directive must be signed by you in the presence of two witnesses, who will also sign. The person you name as a health care agent may not also be a witness. Some states also require the advance directive to be notarized.

The Living Will

A living will allows you to put in writing your wishes about medical treatments in the event you become ill, disabled, or otherwise unable to communicate your wishes directly.

States may also call this a “healthcare declaration,” medical directive,” or “directive to physicians,” but the purpose of a living will is to instruct and guide your family and doctors about your medical wishes at the end of life.

A living will goes into effect once a physician (or more than one physician in some states) certifies that your condition qualifies as a medical condition specified in your state’s living will law and after you are unable to make medical decisions

Click here to view a sample living will form.

Healthcare Power of Attorney

A healthcare power of attorney, also referred to as a “healthcare proxy,” “appointment of a healthcare agent,” or “durable power of attorney for healthcare,” allows you to appoint a person to help deal with your medical situation if you cannot speak for yourself.

Typically, a healthcare power of attorney goes into effect after one or more doctors certifies that your medical conditions qualify under your state laws and you are, in fact, unable to make medical decisions on your own.

In simple cases, you can create a power of attorney with a DIY form.

Out of State Advance Directives

The question whether your advance directive will be honored in another state depends on the state. Some states will honor an advance directive from another state. This is especially true if the state laws match. Other states, however, may not honor an out-of-state advance directive which, in this case, you would need to create an advance directive in the state you currently reside.

What to Do With a Completed Advance Directive

The best thing you can do after creating an advance directive, whether a living will or healthcare power of attorney, is to make several photocopies of the completed document and keep the originals in a safe place. You never know when you will need the advance directive, so it is a good idea to give copies to your doctors, agent, family members, or friends. Lastly, if you are having surgery or some other procedure that requires a hospital stay, it may also be wise to bring your advance directive with you and keep in your medical file.

If you are not sure where to start with creating an advance directive or have other elder law legal concerns, start by talking to an attorney.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

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Can I Solve This on My Own or Do I Need an Attorney?

  • Complex elder law situations usually require a lawyer
  • A lawyer can reduce the chances of a family dispute
  • DIY living wills, and powers of attorney are possible in some simple cases
  • You can always have an attorney review your form

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