Attorney at Law

As we age, the thought of a future where illness or cognitive decline might rob us of the ability to make our own healthcare decisions can be a source of untold anxiety. This is particularly true for individuals facing the possibility of dementia or other conditions that could impair their decision-making capacity. Without advance planning, critical choices about medical treatment, life support options, and long-term care arrangements could be left up to well-meaning but potentially uninformed family members or even strangers thrust into the role of decision-maker by circumstance. 

In this guide, we will discuss how advance directives such as living wills (specifying treatment preferences for situations where you can't express them), healthcare proxies (appointing someone to make decisions on your behalf if incapacitated), and emergency orders like DNRs (communicating wishes about CPR and other life-saving measures in emergencies) can be used to ensure your healthcare preferences are respected, providing peace of mind for you and clear guidance for your loved ones.

Living Wills

Imagine being in a situation where you can't communicate your wishes about medical treatment. It's a scary thought, but a living will can give you peace of mind. This legal document acts as your voice, spelling out what kind of medical care you want (or don't want) if you're facing a serious illness or injury and can't speak for yourself. Think of a living will as a detailed roadmap for your future healthcare. It covers a range of important decisions, including:

  • Life-Sustaining Treatments: Do you want measures like CPR, being put on a ventilator, or receiving dialysis if your life is on the line? This is where you can express your preferences.
  • Artificial Nutrition and Hydration: If you can't eat or drink on your own, how do you feel about receiving nutrition and fluids through tubes?
  • Pain Management: Even if it might shorten your life, do you want to prioritize comfort care and pain management above all else?
  • Organ Donation: Would you like to donate your organs or tissues after you pass away?
  • Other Treatments: Are there any other specific medical interventions you feel strongly about, like antibiotics, blood transfusions, or experimental treatments?

Timing is everything with a living will. You need to define when it kicks in – and when it might no longer apply. Typically, a living will is triggered when you're facing a terminal illness with no hope of recovery or you're in a persistent vegetative state with no chance of regaining consciousness. But what if your condition improves? The good news is that your living will doesn't automatically lock you into your previously stated wishes, and if you regain the capacity to make your own healthcare decisions, your living will will become dormant. 

Finally, it’s important to note that while a living will outlines your preferences for future medical care and serves as a guide for your healthcare providers and healthcare proxy, it does not constitute an immediate medical order. This means that, in the absence of specific medical orders such as a DNR or POLST form (discussed in detail below), which must be signed by a physician, the instructions in a living will may not necessarily be automatically followed during emergencies. 

HealthCare Proxies

A health care proxy, also known as a health care power of attorney (POA) or a durable power of attorney for health care, is a legal document that designates an individual, known as a health care agent or proxy, to make medical decisions on your behalf when you are unable to do so yourself. Healthcare proxies are particularly important in situations involving serious, life-altering medical conditions, such as advanced stages of terminal illnesses, severe injuries that result in unconsciousness, or significant cognitive decline, such as advanced dementia or recovery from severe strokes. 

Generally, your healthcare proxy steps in when your doctor determines that you can no longer make your own medical decisions. This determination, known as a competency evaluation, is not a simple yes-or-no answer. Your doctor will carefully assess your ability to understand several key areas:

  • Understanding your medical condition: Can you explain your diagnosis in your own words? Do you grasp the severity of your condition and the potential consequences?
  • Appreciating the risks and benefits of treatment options: Can you weigh the pros and cons of different treatment options, including things like potential side effects, length of recovery, and impact on your quality of life?
  • Making a decision consistent with your values and goals: Can you articulate your priorities for care? Are you focused on maximizing longevity, maintaining quality of life, or managing pain?
  • Communicating your wishes clearly: Can you express your decisions to your doctor and other healthcare providers in a way that is understood?

The doctor will likely gather information from various sources to make this determination. This might include reviewing your medical history, conducting a mental status examination to assess your cognitive abilities, speaking with you directly about your understanding of your condition and treatment options, and consulting with family members or caregivers who are familiar with your wishes and decision-making capacity

The specifics of this process can vary slightly from state to state. Some states require a second doctor to confirm the first doctor's assessment, known as a concurring physician. Others might have specific forms that need to be filled out by the doctor, outlining the details of the competency evaluation. But in most cases, the doctor's determination is simply noted in your medical records.

It's also important to remember that your healthcare proxy document itself must comply with your state's laws. This usually involves specific requirements for how the document is signed and witnessed. For example, some states require your signature to be notarized, while others allow for witness signatures. If your document doesn't meet these requirements, it might not be legally valid, and your chosen proxy might be unable to act on your behalf.

It should be noted that while healthcare proxies and living will play crucial roles in guiding medical care when you cannot make decisions for yourself, they have distinct focuses and applications. 

A living will typically outlines specific preferences for the types of medical treatment you wish to receive or refuse, particularly in end-of-life scenarios, and serves as a clear directive to medical personnel regarding your healthcare decisions in situations such as terminal illness or permanent unconsciousness. In contrast, a healthcare proxy grants an individual broader authority to make real-time medical care decisions. This is especially important when medical decisions are not explicitly covered by the stipulations of a living will or when unexpected medical decisions arise. In such cases, the proxy's role is to interpret your wishes as stated in your living will or other advance directives and ensure that these wishes are respected, providing a responsive and adaptive approach to unfolding situations.

Reviewing and Updating Your Advance Directives

Life is unpredictable, and your healthcare preferences may change over time due to factors such as new medical diagnoses, shifts in personal values, or changes in family dynamics. Regularly reviewing your advance directives allows you to assess whether they still align with your current wishes and circumstances.

It's a good idea to review your directives at least once a year, or even more frequently if you experience significant life changes, such as a new diagnosis of a serious or chronic illness, a change in your marital status (marriage, divorce, or the death of a spouse), the death of a designated healthcare proxy, or a move to a new state with different laws governing advance directives. When reviewing your directives, consider the following questions:

  • Do your current directives still reflect your values and preferences regarding healthcare decisions?
  • Are your designated healthcare proxies still willing and able to fulfill their roles?
  • Have any new medical conditions or treatments emerged that you want to address in your directives?
  • Are there any new state laws or regulations that might affect the validity or implementation of your directives?

If you determine that changes are needed, it's crucial to follow the proper legal procedures for updating your advance directives. This may involve:

  • Executing a new set of documents that reflect your updated wishes
  • Revoking or amending your existing directives, following the specific guidelines set forth by your state
  • Having your updated directives properly witnessed and/or notarized, as required by state law
  • Distributing copies of your updated directives to your healthcare proxies, family members, and medical providers

In addition to the documents discussed above, it's important to note that there are other types of advance directives that can be helpful in specific situations. For example, a Psychiatric Advance Directive (PAD) allows individuals with mental health conditions to express their preferences for mental health care treatment in the event they become mentally incapacitated. 

Emergency Medical Orders 

When a medical crisis strikes, every second counts. In those moments, your ability to clearly communicate your wishes about life-saving interventions can mean the difference between receiving the care you want and undergoing treatments you'd prefer to avoid. That's where emergency medical orders come into play. These orders, often printed on brightly colored paper or worn as bracelets, act as a clear signal for emergency responders and medical personnel regarding what your preferences are in such moments. Most importantly, these orders must be signed by a physician, nurse practitioner, or physician assistant to be considered valid because they attest to the fact that a medical professional has discussed your treatment preferences with you and ensured that the orders align with your individual medical needs and personal values. 

Emergency medical orders come in various forms, each addressing specific aspects of your medical care in critical situations. By understanding these different orders, you can make informed decisions about the kind of interventions you do or do not want to receive in an emergency. Let's explore some of the most common types:

  • Do Not Resuscitate (DNR) and Do Not Intubate (DNI) Orders: A DNR order instructs healthcare providers not to perform CPR if your heart stops or you stop breathing, and a DNI order specifies that you do not want to be intubated (have a breathing tube inserted) or placed on a ventilator. Both DNR and DNI orders are designed to prevent unwanted interventions and allow for a natural death.
  • Physician Orders for Life-Sustaining Treatment (POLST) Forms: POLST forms are comprehensive documents that go beyond DNR/DNI orders. They cover a wide range of life-sustaining treatments, such as resuscitation measures, mechanical ventilation, artificial nutrition and hydration, and antibiotics. 
  • Comfort Care Only (CCO) Orders: CCO orders, also known as "allow natural death" orders, prioritize comfort and pain management over life-prolonging interventions and are meant to ensure that you receive care focused on relieving pain, managing symptoms, and enhancing your quality of life.

Note that depending on your specific medical needs and preferences, other orders may be relevant. These could include Do Not Hospitalize (DNH) orders, directives regarding specific medications, and instructions regarding artificial nutrition and hydration.

Decisions about incapacity can be emotional and overwhelming, especially when considering the potential impact on a loved one's well-being and autonomy. If you're facing these choices for yourself or a loved one, having legal support from an elder law attorney can be invaluable. Through AAL's directory, you can find skilled attorneys with extensive experience in elder law practice who can guide you through the process of creating advance directives and powers of attorney, ensuring that your wishes are clearly documented and your interests are protected. They can also provide essential assistance if guardianship or conservatorship proceedings become necessary, helping you understand the legal system and advocating for the best possible outcome.

Ask a Lawyer

Ask your own question and get advice from expert attorneys
Ask Question

Featured Advance Healthcare Directives Lawyers

J Nichols Law

1 years in practice
Advance Healthcare Directives, Business Formation, Estate Administration, Estate Planning, Intestacy
View Profile

Silvio M. Silvi, Attorney at Law

38 years in practice
Advance Healthcare Directives, Commercial Real Estate, Elder Law, Estate Administration, Estate Planning
View Profile

McLaughlin Legal, APC

15 years in practice
Advance Healthcare Directives, Business Taxes, Criminal Tax Litigation, Estate Administration, Estate Planning
View Profile

D&O Law Group, LLC

15 years in practice
Criminal Defense, Divorce & Family Law, DUI Law, Personal Injury
View Profile

Law Offices of Ricardo J. Mauro, P.C.

29 years in practice
Auto Accidents, Personal Injury
View Profile

Law Offices of Robert F. Julian

47 years in practice
Auto Accidents, Construction Injury, Personal Injury, Wrongful Death
View Profile


Are you looking for an attorney? Do you have questions about a legal case you are facing? Contact us now and we will put you in touch with a lawyer for free.
Attorney At Law is changing how clients connect with lawyers. By providing an innovative platform to lawyers who want to expand their practice’s reach, AAL is bringing law practices into the future.
6142 Innovation Way
Carlsbad, California 92009
Some of the content of this website may be considered attorney advertising under the rules of certain jurisdictions. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.
crossmenuchevron-upchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram