Not long ago, I was discussing health care advance directives with a client. When we began discussing health care powers of attorney she asked: “Is that the one where the person you’ve named can pull the plug?” I responded: “Well, they don’t really pull any plugs, but yes.” She asked: “What if I don’t want them to do that then?” I queried: “Like RIGHT then?” She said: “Yes, right then.” I assured her: “Sit right up in that bed and scream, ‘STOP!’” She asked: “So, I CAN do that.” Her lawyer (me) responded: “Of course. If they do it anyway it is called murder.”
Why Are Advance Directives Important?
Many do not understand how important Advance Directives and Health Care Powers of Attorney are until they need them; then they become VERY important. If you do not have either document, let’s take a look at who gets to make those health care decisions for you under North Carolina law.
First, a guardian, if one has been appointed.
Second, a spouse, if you have one. Even then, you may wish to avoid putting her through that. Or perhaps there is that impending divorce . . . .
Third, a majority of your parents and children over 18. “All in favor of pulling the plug on Ma, raise your hand!”
Fourth, a majority of your siblings. Bwahahaha!
What could possibly go wrong?
Are advance directives for older people only? Allow me to answer with a pop quiz:
Q: What did Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo have in common?
A: Two things. They became famous (infamous) court cases. All three names belonged to young, healthy women without advance directives.
Types of Directives
In North Carolina the most commonly encountered directives are the Do Not Resuscitate Order (commonly called a “DNR”), the Medical Order for Scope of Treatment (“MOST”), the Health Care Power of Attorney (“HCPOA”), and the Advance Directive for a Natural Death (“Living Will”).
The MOST form, commonly printed in hot pink in order to standout, is used during a hospital stay if the patient or his representative, together with a physician, wish to map out types of life-prolonging measures that will be withheld in the event of a life threatening medical event. They may very well override any previously executed Living Will or HCPOA. You are NOT required to have such a form, and that is clearly stated on the form.
The DNR (also known as a portable DNR because, well, it is portable) is usually printed out in bright gold (again, to be conspicuous). Similar to the MOST it maps out the withholding of resuscitation during a medical emergency. Many people tape near the bed or on the refrigerator so the EMS crew will see it.
The MOST and DNR forms will only be issued after physician consultation with the patient, or if the patient is incapacitated, the Agent named under the HCPOA or (if there is no HCPOA) one of the priority persons named above.
Because these forms are rarely used far in advance and do not involve any input from yours truly, they will not be discussed further here.
On the other hand, the HCPOA and Advanced Directive for a Natural Death (“ADNDs” are also referred to as “Living Wills”) forms are commonly offered as part of our estate and asset protection planning engagements.
If you tell me you do not want an HCPOA, I will call you crazy. If you tell me you do not want an ADND, I will tell you it is entirely up to you.
I will walk you through these forms below.
Health Care Power of Attorney
The HCPOA (also called a Health Care Proxy in some states) is an instrument used to appoint other people to make health care decisions for you when a physician certifies that you are unable to make or communicate your own health care decisions.
North Carolina offers a statutory form that is guaranteed to comply with North Carolina legal requirements, although you may use alternate forms. You may download a form here and use it to follow along with this discussion.
Section 1: Name and give contact information for the folks you are appointing to make health care decisions for you. These are called “Agents.” You can appoint Agents to serve in the order listed, or occasionally I will alter the wording to provide that someone will serve until another person (for example, an out of town kid) can arrive. I discourage naming joint agents or “either-or” agents. You are creating confusion at a potentially chaotic time.
Section 2: Leave it blank! You may nominate a physician by name to make the determination that you’ve gone ‘round the bend. But why? What if Marcus Welby, MD is off big game hunting in Tanzania when the crisis comes?
Section 3: Of course, you can revoke it!
Section 4: This section blathers on for a page and a half to basically say, “My Agent may make any health care decision for me that I could make.” Why a page and a half? Lawyers wrote it.
The most important few words, however, are the opening clause of the section: “Subject to any restrictions set forth in Section 5 below, . . . “ In other words, if you trust your Agents to make the types of decisions you would make, and if you believe they have the emotional maturity and stamina to make those tough decisions, then you may leave Section 5 blank. On the other hand, if you want to give directions that or more specific, then you can plow through Section 5.
Section 5: As discussed above, if you wish to fine-tune your Agent’s authority, this is where to do it.
- Subsection A: Initial the first blank if no matter how dire things get, you want to keep getting fed. Of course, this isn’t a Big Mac and a side of fries – the key word is “artificial” (think “drip, drip”). Initial the second blank if you want hydration to continue, come what may (again, think “drip, drip”). Notice in the longer blanks under each you can fine tune or clarify your wishes.
- Subsection B: Another place to add specific instructions. For example, a number of my clients have been Jehovah’s Witnesses with specific religious restrictions on the use of blood transfusions and other blood products. In fact, I keep that language handy, and this is where it goes.
- Subsections C and D: These present an opportunity to fine tune or restrict your Agent’s authority to make mental health decisions and select treatment options. I do not recall any of my clients ever selecting this.
- Subsection E: Under Section 4.I. (see above) you have authorized your Agent to make decisions regarding disposition of your remains (unless you have made other enforceable arrangements like a preneed funeral contract). You may make specific directives here regarding burial arrangements.
Section 6: There are two parts.
- The first regards organ donations. Leave this blank if you want to leave it up to your Agent. If you want to authorize your Agent to make any organ donations initial the first space (this is rather silly, because if you leave this blank the Agent still has the authority under Section 4.I). If you want to fine tune this authority, initial the second space and leave the first blank. For example, initial then write in “my Agent may donate my eyes only.”
- The second part is similar to the first part, but relating to donation of your body for research. The first place to initial gives unlimited authority to your Agent (again, you’ve already done that under Section 4.I). The second space gives an opportubity to fine-tune the ability to donate your body. For example, “You may donate my body to Duke University Medical School, but never to Wake Forest School of Medicine.”
Section 7: The Agents you have appointed will automatically be considered as candidates for your guardian if that should ever become necessary (I avoid guardianships as much as possible and believe that the HCPOA does the trick). By the way, the statute referenced says that you should be allowed to participate in decision making to the greatest extent possible, even if you have a guardian appointed.
Section 8: This assures anyone relying in good faith on your HCPOA and the instructions of your Agent will not get sued.
Section 9: Lawyer-written housekeeping.
For Mason Law, PC estate planning clients, if you do not have a HCPOA properly completed and in place you WILL receive one. If you wish to complete any of the fine-tuning provisions above, it can save time if you show up at signing with a draft HCPOA that you have been through and initialed. That way we can transfer it all to the “pretty” document we have prepared on bond paper, with witnesses named, and so forth.
Advance Directive for a Natural Death (“Living Will”)
The ADND is completely optional. Do not let anyone at the hospital tell you that you must have one. If you feel confident that your health care Agents named under your HCPOA are up to the task and you trust them (or don’t mind asking them to make some tough decisions), then you do not need an ADND.
But, if you do not have anyone you trust or you do not care to put a loved one through the wringer of making tough decisions, then the ADND is for you. I will walk you through the statutory form below and suggest you download one here to help follow along.
Another way to think of the two advance directives is that under a HCPOA you are appointing people to make health care decisions for you, and under an ADND you are directing health care providers what to do (or, not do).
Section 1: Here you will select WHEN you want the ADND to apply. Three situations are provided, and you may choose any or all of them. Option #1 is when the docs say that you are terminally ill and do not have very long. Option #2 is when the docs say you are unconscious and will remain so (I was behind someone on I-85 the other day who I believe fit this definition). Finally, Option #3 pertains to “advanced dementia” (I guess they know it when they see it) that to a high degree of medical certainty will be permanent.
Again, choose any one option, any two, or all three.
Section 2: Here you either give health care providers the option of withholding life prolonging procedures (initial blank one) OR directing them to withhold (initial blank two).
Section 3: This is where you can basically say, “But WAIT! I still want a few things.” Even though you may have reached one of those milestones outlined and selected in Section 1, you can specify that you wish to receive BOTH artificial hydration and nutrition (initial blank one), or just hydration (blank two), or just nutrition (blank three).
As I mentioned under my discussion of HCPOAs, artificial nutrition and hydration does not, in this context, refer to a Big Mac, fries, and a shake (although I do have my personal opinion regarding the status of those American delicacies). Think of it more as a “liquid diet.”
Section 4: If you are a masochist, the ADND form is not for you. This section says you want to be made as comfortable as possible. There is no way to edit this section, so I guess this is a default setting.
Section 5: You are simply stating that you understand what you’re doing.
Section 6: OK. This is a bit crazy. If you initial the first blank, it means that the ADND overrides any end-of-life decision your HCPOA Agent may want to make. Your health care providers will simply ignore your HCPOA when the ADND applies. BUT, if you initial the second blank, its says the HCPOA Agent controls. If that is so, THEN WHY ARE YOU MESSING WITH THIS FORM IN THE FIRST PLACE?
Sections 7, 8, and 9: Your health care providers may rely on the ADND without worrying about being sued, you state that you want the ADND to be effective anywhere, and you have the right to revoke the ADND. Section 9, does give a bit of commonsense advice: It says you should “try to destroy all copies of it” (you don’t want copies of your now-revoked medical exit plan floating around if you decide you’d like some additional heroic measures taken).
With respect to both the HCPOA and the ADND, you will need to sign before two witnesses and a notary.