An advance directive is an often overlooked part of estate planning, but it shouldn't be. This array of critical legal documents clarifies your medical care wishes should you be incapacitated. After all, most people want to leave some kind of legacy after they pass away, but many forget to think about what may come before.
“An advance directive is a gift to the people who will do the talking for you,” says Rory Farrand, VP of palliative and advanced care at the National Alliance for Care at Home. “It takes the guilt and the stress of that decision away from them. It’s a kind and gentle thing to do for the people that love you.”
An advance directive can help you with your own end-of-life planning such as palliative or hospice care. And if you are concerned about a loved one with a new dementia diagnosis or serious chronic illness, the advance directive is a key tool to protect their wishes. Think of an advance directive not as one document to be signed but as the process of discerning what you need, talking to your doctor and loved ones and then setting up legal structures to formalize your plan.
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What is an advance directive?
While many people may have heard of an advance directive, they may be less familiar with the term than with related tools, like living wills. An advance directive is for all situations in which you can’t make your medical wishes known, while a living will only address terminal illnesses. “Everybody over 18 should have one,” says Evan Beach, founder and president of Exit 59 Advisory, of an advanced directive. “The older you get the more important it becomes because the odds of becoming incapacitated increases.”
When it comes to advance directives, there are several types. Here are some useful terms related to advance directives.
- Living will: As mentioned above, a living will provides guidance in the case of terminal illness if you become unable to make decisions about your care. It dictates the treatments you do and don’t want in such a situation.
- Medical power of attorney (POA): A medical POA designates someone you trust to make medical decisions for you if you cannot do so. Importantly, a medical POA gives the person the authority only to make medical decisions on your behalf — not financial decisions. Another term for a medical POA is a health care power of attorney or health care proxy.
- Provider orders for life-sustaining treatment (POLST): This document is a portable medical order that informs healthcare providers and facilities about your wishes for end-of-life interventions, including emergency medical care.
- Medical orders for life-sustaining treatment (MOLST): This form enables people to dictate their end-of-life care. It can include whether you want to be resuscitated, intubated, or put on a ventilator.
- Do-not-resuscitate (DNR) order: This order tells health-care providers not to implement cardiopulmonary resuscitation, better known as CPR, if you stop breathing or your heart stops beating.
- Mental health or psychiatric advance directive (PAD): This directive allows someone with mental illness to express their treatment preferences before a crisis occurs in case they become unable to make their wishes known. The legal guidelines for PADs vary by state. PADs are a fairly new tool for patients and clinicians alike.
- Medical directive: This is another name for an advance directive.
This list is not exhaustive, but these are the main documents that might be included in an advance directive.
Why do I need an advance directive?
While an advance directive allows you to specify someone to make medical decisions for you if you cannot do so on your own, there is much more to it than that. This document also clarifies what to do in the event of certain medical situations that leave you unable to manage your own care or make decisions.
Making medical decisions for someone else can be an immense burden, so having an advance directive in place can provide support for your family or for whomever you choose to make decisions for you. This document also takes some of the guesswork out of figuring out what decisions you might make if you were able to do so.
“I have kids and if I became incapacitated I would never want them to make the decision whether or not to take me off life support,” says Beach. “Its too heavy of a burden on somebody else.”
An advance directive also lets you specify if you want to donate any organs. Farrand says you can even specify if you want to donate anything beyond organs such as your cornea, skin, tissue, bones, veins or whatever else is viable. “We always have a dearth of viable organs at all times,” she says.
For these reasons, all adults should have an advance directive in place. Yet only about a third of U.S. adults had an advance directive, according to a study published in the journal Health Affairs.
If you cannot communicate and don't have an advance directive on file, your health-care provider will attempt to reach an immediate family member, who will then be tasked with making decisions on your behalf.
Some states have a family agency act that designates the order of priority governing which family member must make decisions on your behalf if you have no advance directive. If you have no immediate family, then the health care provider may make the best decisions they can on your behalf until a legal surrogate is identified. Different states have various rules governing such situations.
How do I get an advance directive?
Advanced care planning is free for Medicare beneficiaries under Part B. During your next annual wellness visit, ask your doctor about a living will and a health care proxy.
For those not on Medicare, you may want a lawyer to draw up your advance directive to ensure that it clearly expresses your wishes and meets all legal requirements in your state. If the word "lawyer" makes you see dollar signs, try some of the tips we've put together on how to save money on estate planning.
Many states allow any form or documentation to suffice if you cannot afford an attorney's assistance. Some websites also enable you to create your own legal documents, providing some guidance to help ensure your final document checks all the necessary boxes for legality. Farrand pointed to the Five Wishes advance directive document as one example.
You should store your completed advance directive where a family member or legal representative can easily find it in an emergency. You could also store copies in a home safe. Never keep your original advance directive in a bank's safe deposit box, as it would be difficult to access quickly. It's also a good idea to make copies of your advance directive and leave it in your car, in your wallet or purse and affixed to your refrigerator. “My preference is to share it far and wide,” says Farrand. “EMTs are trained to look for it on the side of your fridge.”
You should also provide a copy of the document to your primary care or other health care provider. It's also a great idea to upload it to the national U.S. Advance Care Plan Registry in case you're traveling or being treated by a different health care facility than the ones you usually frequent.
Common pitfalls with advance directives
Aside from not having a living will or advance directive at all, the other most common pitfall is not being clear or specific enough in your explanations of what you want. Unfortunately, a lack of experience with certain kinds of medical conditions and available treatment options can make it challenging to anticipate what steps you want to be taken.
If an advance directive does not give clear instructions, the result can be a lack of care due to what may be interpreted as a blanket do-not-treat statement. On the other hand, there is always a chance that family members will opt for far more care than you would wish for at the end of your life.
For example, some common questions that should be addressed in an advance directive include the use of ventilators or feeding tubes, DNR orders, and any other specific areas of concern you might have.
The bottom line
Of course, no one can anticipate what types of medical problems or accidents might befall them in the future, especially years before. However, the best way to ensure that your wishes are followed is to put an advance directive or living will in place with clear instructions.
An attorney can help guide you through the most common issues that should be addressed in this document.
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