Advance Directives

Q: I am going to see my doctor for my annual physical exam. Should I discuss my health care proxy at that appointment?

A: It is never a bad idea to discuss your advance directives with your physician. Advance directives are documents that you sign while you still have capacity that are meant to give direction as to how your healthcare should be handled if you become incapacitated. The term “advance directives” can refer to a health care proxy and a living will. Both of these documents must be signed in the presence of two witnesses who are over the age of 18; they need not be signed in the presence of a doctor or a lawyer. However, they are often signed with an attorney when completing an estate plan.

The health care proxy is a document that states who will make medical decisions for you if you lose your mental capacity and are unable to make these decisions for yourself. This may include a temporary incapacity such as when a person is under anesthesia, or a long-term incapacity that is a result of dementia or some other cognitive impairment. The health care proxy names one agent to act on your behalf and you can name a successor if your initial agent becomes unavailable to act.

A living will is a document that gives direction as to the type of treatments that you would or would not want if you were to be in an irreversible state with no reasonable expectation of recovery. If you are unable to voice your opinion as to the administration of a specific treatment, your agent can use the living will as guidance in making these difficult decisions for you.

A document that you will want to discuss with your doctor is the Measure of Life Sustaining Treatment (MOLST) form. This is a form that is signed by you and your doctor. In fact, Medicare will pay for a visit for you and your doctor to discuss and sign this document. The MOLST form is intended to be used as a patient moves between different care settings to make sure the patient’s wishes regarding treatment options are known by the care team. The original form remains with the patient. A MOLST form is usually signed after the advance directives and more specifically describes how the care should be provided.

Another document that relates to medical care is called the Five Wishes. This document can be completed by an individual to state who can make medical decisions on their behalf, what type of treatments the individual would or would not want, what is most important to the individual’s comfort and dignity, what spiritual or religious wishes should be taken into consideration, if any, and what you would want loved ones or healthcare providers to know about you. It should be noted that the Five Wishes document would allow a doctor to overrule the decision made by your selected healthcare agent. If this does not meet the needs of the patient, then executing a health care proxy and living will can accomplish the goal of directing one’s care if she should become incapacitated. It should also be noted that the Five Wishes document meets the requirements of a valid health care proxy or living will in forty-two states plus Washington D.C. This would mean that if an individual relocates or travels outside of those regions, the document could be rejected by health care providers.

The decisions regarding administration or termination of certain types of medical treatments are some of the most important ones to be made in a person’s lifetime. Completing documents such as the ones discussed above are the first step in ensuring that your wishes will be followed if and when you are unable to participate in those conversations yourself.

Once the documents are completed appropriately, the individual should have conversations with the appointed agents, so they are equipped with the information they may need should they have to make these very important decisions.

Nancy Burner, Esq. is the founding manager of Burner Law Group, P.C. Britt Burner, Esq. is a partner of Burner Law Group, P.C. They serve clients from Manhattan to the east end of Long Island with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.