Advance Healthcare Directives: Living Wills and Durable Healthcare Powers

Question 1

Living Will

Answer 1

Living Will states an individuals desires regarding:
* Whether to administer/withhold life-sustaning procedures
* Whether to provide/withhold artificial nutrition or hydration;
* Whether to provide treatment to alleviate paint.

Question 2

Durable Healthcare Power

Answer 2

• aka “Medical Power of Attorney”
• An agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated.

Question 3

Creation and Execution of Living Wills and Durable Healthcare Powers

Answer 3

Most states require living wills and medical power of attorney be:
1. in writing
2. signed by the declarant or principal or at the person’s direction, AND
3. witnessed by two adult witnesses

Most states provide that the person designated as the agent cannot serve as a necessary witness.

Question 4

Family Consent Statutes

Answer 4

Even if healthcare power is not properly witnessed, the designated agent may have the authority to act under a state’s “family consent” or “statutory surrogate” statute.

• Laws that 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.

Question 5

Revocation of Living Wills

Answer 5

• Can be revoked at any time;
• By physical act;
• a witten revocation of the will; or
• an oral expression of intent to revoke.

Question 6

Eligible Agents For Durable Healthcare Power

Answer 6

Many states provide that the principal can appoint anyone EXCEPT an owner, operator, or employee of a healthcare facility at which the principal is receiving care.

Question 6

Revocation of Durable Healthcare Power

Answer 6

By notifying either the agent or the principal’s healthcare provider.

Revocation can be oral or written.

Question 7

Authority of Agent Under Durable Healthcare Power

Answer 7

• Agent has the authority to make most healthcare decisions on principal’s behalf that principal could have made for themselves while having capacity.
• Agent must act in principal’s best interest.
• Agent is not subject to civil or criminal liability for unprofessional conduct relating to decisions as long as agent acts in good faith.