New Healthcare Adavance Directive

Question 1

How long can the existing 3 health care docs to used?

Answer 1

Until Jan 1, 2023. Any documents signed during the transition period will remain valid and enforceable.

Question 2

Is the AD a set form?

Answer 2

No. It is flexible; no prescribed form.

Question 3

What are the basic permitted and typical contents?

Answer 3

(a) Name 1 or more health care representatives (HCRs)
(b) State specific health care decisions and/or treatment preferences, including preferences for life-prolonging procedures or palliative care [The statute contains no limitations on the expression of
treatment preferences]
(c) [Optional] Disqualify named individual(s) from receiving delegated authority or serving as a HCR

Question 4

What are the signing requirements for AD?

Answer 4

(a) Declarant (patient or signer) signs on paper or electronically OR directs some adult (not a health
care representative and not a witness) to sign declarant’s name in declarant’s direct presence
(b) Declarant signs in the “presence” of 2 adult witnesses OR signs in the “presence” of a notary
public or other notarial officer
(c) The 2 witnesses OR the notarial officer also sign the AD electronically or on paper

Question 5

What are the basic presumptions and rules IF the advance directive (AD) does NOT explicitly say otherwise?

Answer 5

A. The AD and the authority of each named HCR is effective upon signing and remains in effect until the AD is revoked in writing (Oral revocation possible only in the direct presence of a health care provider)

B. A later-signed AD supersedes and revokes an earlier signed AD by the same Declarant

C. Unless HCRs are listed in order of priority (primary & backup, etc.), 2 or more HCRs named in the same AD have concurrent, equal, and independently exercisable authority and are not required to act jointly

D. If Declarant still has capacity to consent to health care, orders and instructions by Declarant will control over any decisions by a HCR and any specific instructions stated in the AD

E. Any health care representative (HCR) can delegate authority under the AD in writing to any competent
adult(s) or other persons (a delegation should be signed in the same manner as an AD)

F. The HCR has authority to authorize anatomical gifts, to authorize an autopsy, and to arrange for burial or
cremation of the Declarant’s remains after Declarant’s death

G. The HCR can access Declarant’s medical records & health information under HIPAA and state law

H. The HCR has authority to consent to mental health treatment for the Declarant

I. Each HCR has authority to sign a POST / POLST or an out-of-hospital DNR declaration for Declarant if
Declarant is found to be a qualified [eligible] person

J. The HCR has authority to apply for public benefits (including Medicaid and CHOICE) for Declarant and
to access Declarant’s financial and asset records for that purpose

K. Each HCR is entitled to collect reasonable compensation and expense reimbursement for actions taken and services performed for or on behalf of Declarant

Question 6

What is the Standard of conduct for each health care representative under AD?

Answer 6

• Defer to Declarant’s personal decisions and judgment at all times when Declarant has capacity to consent to health care and is able to communicate instructions, wishes, and treatment preferences
• Take into account Declarant’s explicit or implied intentions and preferences and make only the health care decisions that Declarant would have made
• Act in good faith and in Declarant’s best interests if Declarant’s specific preferences are not known
• Remain reasonably available to consult with Declarant’s health care providers and to provide informed consent for Declarant if Declarant does not have capacity