Advance Healthcare Directives

Question 1

Living Will - General Concept

Answer 1

States an individual’s desire re:
- life-sustaining procedures (whether to administer, withhold, or withdraw)
- artificial nutrition or hydration (whether to provide, withhold or withdraw)
- alleviate pain (whether to provide treatment)

Question 2

Durable Healthcare Power

Answer 2

• aka medical power of attorney
• appoints an agent to make healthcare decisions on behalf of the principal
• does not become effective until the principal becomes incapacitated

Question 3

Requirements for Creation of Living Wills and Durable Healthcare Powers

Answer 3

Must be:
- in writing
- signed by the declarant or principal or another person at the person’s direction AND
- witnessed by two adult witnesses

• most states provide that the person designated as the agent can’t serve as a necessary witness

Question 4

Creation of Living Wills - Capacity

Answer 4

• presumed -> burden of proof is on the challenger to establish lack of capacity
• declarant or principal must be an adult + of sound mind

Question 5

Family Consent Statutes

Answer 5

• permit a close family member to act as a surrogate decisionmaker for a person who has not properly designated an agent under the state’s durable healthcare power statute
• means that even when durable healthcare power isn’t properly witnessed, designated agent may still wind up having authority to act

Question 6

Revocation - Living Will

Answer 6

Living will can be revoked at any time by:
1) obliterating, burning, tearing or destroying the will
2) written revocation of the will
3) oral expression of intent to revoke the will

Question 7

Revocation - Durable Healthcare Power

Answer 7

• can be revoked by notifying either the agent or the principal’s healthcare provider
• revocation can be oral or written
• some states also allow revocation in the same manner as for living wills

Question 8

Individuals Eligible to Act as Agent Under Durable Healthcare Power

Answer 8

• many states provide that a principal can appoint as agent anyone EXCEPT an owner, operator, or employee of a healthcare facility at which the principal is receiving care, unless that individual is related to the principal

Question 9

Authority of Agent Under Durable Healthcare Power

Answer 9

• agent has the authority to make most healthcare decisions on the principal’s behalf that the principal could have made for themselves while having capacity
• authority of agent = w/in discretion of principal -> must be stated in the instrument creating the durable healthcare power
• if specific powers not expressed, must act in the principal’s best interests
• not subject to crim or civil liability or discipline for unprofessional conduct relating to healthcare decisions provided agent acted in good faith