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Frequently Asked Questions about Advance Directives
The following questions and answers are derived from materials provided by the Central Massachusetts Partnership to Improve Care at the End of Life and from other expert resources on advance care planning to give you general background information. For advice on your specific situation, you should consider speaking with an attorney.
What is an advance directive?
An advance directive is a legally binding document in which you express your wishes for your health care in the event that you become unable to make your own health care decisions. A health care proxy is an advance directive in which you appoint another person to make health care decisions for you if you are unable to make them yourself. In Massachusetts, health care proxies are authorized by chapter 201D of Massachusetts General Laws.
How does a durable power of attorney differ from a health care proxy?
A power of attorney is a document in which you, as principal, appoint another person to serve as your attorney in fact (in other words, as your agent) in business and financial matters affecting you or your property. A power of attorney is "durable" if the power it confers remains effective even though you later become incapacitated. Your attorney in fact has no authority to make health care decisions for you. To appoint an agent to act for you in health care matters, you must sign a health care proxy.
What is a living will?
A living will is a written statement in which you declare your preferences for medical treatment if you become so ill that there is no reasonable hope of recovery and you are unable to make or communicate health care decisions. Living wills are not legally binding in Massachusetts.
How do I choose an agent?
Your health care agent should be someone you know and trust. He or she should be a person with whom you are comfortable discussing your wishes regarding your health care, including such issues as terminal illness, treatment alternatives such as hospice care, and the withholding or withdrawing of life-sustaining measures. Your health care agent should understand your values and beliefs, and be someone you are confident can act as your advocate in making your wishes known and seeing that they are respected.
Do I need an alternate?
It is not necessary to name an alternate health care agent, but it is advisable to do so if your health care agent may not be available to act for you at all times.
Who can witness the signature?
Anyone age 18 or older, including a family member, can witness your signature on your health care proxy. The only people who cannot serve as witnesses are your health care agent and your alternate health care agent.
How do I fill out the form?
To complete the health care proxy form; fill in the blanks identifying yourself, your health care agent and, if you choose to name one, your alternate health care agent. Sign the form in the place indicated for your signature, in the presence of two adult witnesses. The witnesses must also sign the form. By doing so, they are affirming that they saw you sign the form and that they believe you to be at least 18 years old, of sound mind, and acting of your own free will.
If you are physically unable to sign the health care proxy form, someone other than a witness may sign your name for you, provided he or she does so at your direction and in the presence of the two witnesses.
Do I need a lawyer?
You may wish to talk to a lawyer about the health care proxy, and many lawyers will
prepare a health care proxy as a matter of course as part of an estate plan. You do not
need a lawyer to complete the form.
When does my health care proxy go into effect?
Your health care proxy becomes effective as soon as it is signed and witnessed. Your health care agent, however, cannot act for you until your attending physician has certified in writing that you are unable to make or communicate your own health care decisions. If your physician determines that you have regained the ability to make your own health care decisions, your health care agent's authority to make them for you will cease.
How do I make my specific wishes known to my health care agent?
You can make your specific wishes known to your health care agent in a conversation or in a separate personal wishes statement. You will not be able to consider every possible situation that might require your agent to act on your behalf, but you should let your agent know how you feel about those conditions, illnesses and treatments that concern you the most. If you wish to limit your agent's authority in any way, you should describe those limitations specifically in the blank space provided on the health care proxy form.
What is a personal wishes statement?
A personal wishes statement is a document in which you communicate to your health care agent your wishes regarding your medical treatment and the care you wish to receive in the event of a terminal illness.
Is a personal wishes statement legally enforceable?
No, a personal wishes statement is not legally enforceable. However, the law authorizing the creation of a health care proxy requires a health care agent to make health care decisions in accordance with the agent's assessment of the principal's wishes. A personal wishes statement enables you, as the principal, to make your wishes known to your health care agent.
Can I direct that my organs be donated in a personal wishes statement?
You can express your wish that your organs be donated in a personal wishes statement. However, because a personal wishes statement is not legally enforceable, any expression it contains of your wish to donate your organs is not legally binding. The most effective means to donate your organs is to complete an organ donor card at the Registry of Motor Vehicles.
Can I direct my funeral arrangements in a personal wishes statement?
No, a personal wishes statement is not a proper place for funeral arrangements. A letter of instructions should be left with family members or a funeral director.
How do I make my wishes known to emergency personnel outside a hospital?
Ask your physician to obtain for you a Comfort Care/Do Not Resuscitate Order Verification, in either paper or bracelet form, from the Department of Public Health. EMS personnel who encounter a person in respiratory or cardiac arrest who has such a form or bracelet will not resuscitate that person, but will provide palliative care as appropriate. Persons in respiratory or cardiac arrest without such a form or bracelet will be resuscitated by emergency personnel.
What if I change my mind?
If you change your mind about your health care proxy at any time, you can revoke it by tearing it up; by telling your health care agent, your alternate, your doctor, your nurse or your lawyer that you are revoking it; or by doing anything else that clearly shows that you no longer intend the health care proxy to have effect.
If you fill out a new health care proxy form, any earlier health care proxy of yours will automatically be revoked. Your health care proxy will also be automatically revoked if you legally separate from or divorce a spouse who was named as your health care agent.
Do I need to renew the directive?
No. Unless you revoke your health care proxy or it is revoked automatically, it will remain in effect until you die. You should review it regularly to make sure that the names, addresses and telephone numbers of your health care agent and alternate health care agent are still current, and that the people you have named as your health care agent and alternate health care agent are still willing to serve.
How will my doctor know if I have a health care proxy?
You should be sure to tell your doctor that you have completed a health care proxy, and you should make him or her aware of your treatment preferences.
Where should I keep my health care proxy? Who should have copies?
Keep your original health care proxy with other important papers in a place that is safe but easy to find. Do not keep it in a safe deposit box.
You should give a copy of your health care proxy to your health care agent, your alternate health care agent and your doctor. You may also wish to give copies to family members, your lawyer and your clergy.
What happens if I sign a health care proxy in another state, and then move to Massachusetts?
A health care proxy that is executed in another state and complies with that state's laws is enforceable in Massachusetts. Nevertheless, the better practice for a new Massachusetts resident is to sign a Massachusetts health care proxy as soon as it is convenient to do so.
Why is it important to have advance care plans?
- Because loved ones have a significant chance of not knowing a person's views
without discussion.
- Most of us will die under the care of health care professionals and up to 50% of
people cannot make their own decisions when they are near death.
Why do people avoid advance care planning?
- It can be very personal.
- It may elicit strong emotional reactions.
- We may be unclear how to start the conversation.
- It may raise issues that are difficult to resolve.
- It requires time.
- In our society we avoid the topic of death - don't want to admit it will happen.
Why might you want to have an advance care plan?
- Choice, control, trust
- Helps to avoid family conflict
- Lessens guilt for person making decision
- It's the only way your wishes can be honored
I have been asked to be someone's health care proxy. What are my responsibilities?
This is a role based upon trust. You should first understand what the wishes are that you will be asked to carry out. Many people may not be comfortable authorizing or withholding treatments as stipulated in an individual's instructions. You should discuss these with the person executing the health care proxy or living will.
You should keep up to date on what care is being provided. Most health care proxies are friends or relatives and not necessarily individuals who work in the health care industry. Being in tune with what the care plan is and how the care is progressing will help if you're called upon to make health related decisions.
Periodically discuss with the individual his/her designated instructions. Circumstances and people change over time and it's not uncommon that an individual may want to re-think earlier decisions. Some may also be reluctant to change even when they really want to because of appearing burdensome or indecisive to their family or providers.
The proxy may be called upon to discuss treatment options with physicians and family members who may offer differing options from what you know to be the individual's instructions. These discussions can be awkward at times but in many cases they can provide a sense of relief to family members who themselves may be unsure or uncomfortable with the decisions.
Can I use the same forms in all states?
Many states honor forms from other states. For instance, Florida statutes allow you to use forms from other states. Caring Connections does provide some state-specific forms that you can use and carry with you.
I moved from Massachusetts. Do I need to execute new forms?
Not necessarily. Most states provide forms that are honored in other states. However, there may be rules on how forms should be completed. For instance, while the State of Florida honors forms from other states, they require that forms be witnessed by two adults, neither of whom can be the individual's spouse or any blood
relative. You should review any state-specific rules concerning the execution of a durable power of attorney. While not required, you may want to consult an attorney.
If I'm traveling and become hospitalized, how can I be sure my instructions will be known to the hospital staff?
When traveling, you should carry copies of your forms. Also, if you carry information that includes the name(s) of individuals who should be contacted in an emergency, then those individuals should be made aware of your instructions or have copies of any forms you've completed.
Where can I get advance care planning forms for other states?
The following websites provide forms used in other states:
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