“End-of-Life Decisions Should Not Be Made at End-of-Life” (Uncredited)
What is the best Advance Directive (AD) to ensure my end-of-life (EOL) wishes will be honored? This is the number one question I am asked as an EOL consultant. There is no simple answer. Advance Care Planning contains an AD, a “legally recognized” document containing a Living Will spelling out your preferences and treatment options when you cannot speak for yourself. More importantly, the AD typically includes the designation of a healthcare surrogate/agent to follow your wishes after one or two doctors declare you incapacitated. You can also indicate who you don’t want as your surrogate. Another form, a Medical Power-of-Attorney (M-POA), is a separate legal document, often created by an attorney, that grants another person the right to make ALL of your healthcare decisions now or in the future.
AD and M-POA forms are STATE-SPECIFIC; each state has laws controlling them.
While some state forms are fillable online, they are typically boilerplate and can be overwhelming, often having 20+ pages. You do not need an attorney to create one. Caring Info AD by State offers online access to every state’s free AD form. The website also provides many other relevant planning forms to guide you through the planning process.
While the forms are available for online filling, it’s essential to understand that they need to be printed, signed, witnessed, and, in some states, notarized in person. This means you may need to make physical arrangements to complete it.
Five Wishes offers both a printed and online format for a nominal fee and is valid nationwide, although an additional statutory form is required in four states: Kansas, New Hampshire, Ohio, and Texas. Five Wishes is designed to be easy to understand, user-friendly, and adaptable. I have a client with three pages of notes and instructions attached to her Five Wishes, making it adaptable to her medical and EOL choices and care.
“PREPARE For Your Care” AD is free, easy to use, and covers all states: PREPARE asks questions about your surrogate choices, spirituality, pets, quality vs. quantity of life, treatment choices, after-death plans, and what brings you joy in life. It is much more detailed about your EOL goals and values than many other ADs.
Whom shall I choose as my surrogate? This is the most important decision you will make in your planning. You want someone who knows you and will follow your choices even if they disagree. You can have a detailed list of exactly what you want and don’t want if incapacitated, but if you don’t select an effective surrogate to advocate for you, you may not get the care you envision. If you have chosen well, your appointed agent will be there to follow your plan, push back against any unwanted treatment, or fight to get you quality care.
Will my AD be accepted in another state? Charles Sabatino, Director of the American Bar Association Commission on Law and Aging, discusses the portability of an AD in his article, Can My Advance Directives Travel Across State Lines? If you live in two different states, it is best to know each state’s AD law and create your directive to be valid in both. Doctors will follow your known wishes in a “valid” AD to avoid liability, but validity in these cases can be murky. In reality, the medical staff is happy to get any AD in an emergency, no matter where it was written.
What about a video? To help ensure your wishes are followed, record a video that spells out your treatment goals. State your name, date, and EOL wishes on your Smartphone. A video AD is only legal in Maryland. In other states, the video is used as a supplement or backup if there are any questions or family conflicts about what you want when you can’t speak for yourself. It will show you had decisional capacity when you made the video, and people will hear your voice. Keep it on a thumb drive and give it to your surrogate along with your AD. Caring Info Video lists companies to help get your video done. MIDEO is a paid service that guides you through the process and provides a wallet card with a QR code that links to your video AD. The program is accepted by most major health insurance.
The essential takeaway is to create an AD using whatever form is best and easiest for you. Record a backup video. Have “the conversation” about your EOL wishes with your Surrogate, family, and healthcare providers. Review your AD regularly and make any needed changes as you age or your health declines. Keep your AD updated and easily accessible to ensure your last wishes for a peaceful death are honored.
Planning ahead about your EOL care is the best gift you can give yourself and your loved ones!
Note: This material is intended for general information and does not constitute legal advice.
June 25, 2024
Althea Halchuck, EJD, BCPA, CT
Ending Well Patient Advocacy, LLC
Cell/Text: (978) 618-7150
