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Advance Directive (Living Will)

If you are 19 or older, the law says you have the right to decide about your medical care.

If you are very sick or badly hurt, you may not be able to say what medical care you want.

If you have an Advance Directive (known as a Living Will), your doctor and family will know what medical care you want if you are too sick or hurt to make decisions.

The following information should answer most questions regarding Advance Directives. If you should have additional questions, or would like to get an Advance Directive to complete, contact Karen Strickland at (334) 493-3541 ext. 191 or Martha Bowlan at (334) 493-3541 ext 217.

Definition of Advance Directive

An Advance Directive is instructions/directions for medical care given ahead of time - in advance of any medical care being provided that requires life-sustaining or prolonging measures.

Who can create an Advance Directive?

Anyone who is of sound mind and at least 19 years old.

Is an Advance Directive required?

No. But if you hear someone stating that they absolutely do not want heroic measures or life support machines, then you need to encourage them to create an Advance Directive.

What are the different types of Advance Directives?

Durable Power of Attorney:
   A lawyer must create this type of document appointing someone else to make decisions for you. It gives them financial and medical authority.
Health Care Proxy:
   This document appoints someone else to make medical decisions for you. It does not have to be done by a lawyer.
Living Will:
   The patient makes his own decisions about medical care in this document. It does not have to be done through a lawyer and does not have to be notarized, but it must have signatures of witnesses who see you sign it.

Can anyone else create an Advance Directive for another person?

Absolutely not. The patient must create an Advance Directive.

Honoring the Advance Directive

The family and health care community are required to honor an advance directive. The family may not agree with the patient's choices, but they are supposed to honor it.

If the family wishes to contest the patient's Advance Directive, then it becomes a battle for the court system. Most of the time, this battle can be avoided by discussing their wishes with the family prior to filling out an Advance Directive.

If the doctor or healthcare facility will not honor the Advance Directive, the patient is allowed to seek another doctor or facility that will honor it.

At any time during the patient's care, the patient himself may make the VERBAL (or written) STATEMENT "Do something," "Do whatever it takes to keep me alive," "Do whatever you have to," "Don't let me die," etc. In this situation, the spoken word overrides the Advance Directive.

Can the Advance Directive be changed?

Absolutely. But, ONLY BY THE PATIENT. It can be changed at any time the patient wishes to do so, as long as the patient is of sound mind.

If there are changes made, ALL the former copies and the original must be destroyed and the new one copied and dispersed.

Federal and state laws change very frequently, so it is wise to keep up with new laws that might open up new advance directive options. If new options become available through new laws, then it would be wise to update your advance directives to reflect the new options.

What Alabama law requires of health care providers:

Health care providers are required to ask the patient if he/she has an Advance Directive.

If the patient DOES have an Advance Directive, health care providers are required to obtain a copy of it to place on the patient's active chart. Mizell staff also tries to maintain a copy of it on file for future admissions.

If the patient DOES NOT have an Advance Directive, health care providers are required to ask the patient if he/she wants information about Advance Directives, or if the patient would like to make one.

All health care providers are required to give a "Summary of the Alabama Law Regarding Advance Directives" to anyone who requests the information, but are not required to provide a copy of the Advance Directives form. Mizell staff usually provides one.

What can I expect as a patient at Mizell?

When a patient is admitted, the Admissions Office personnel should ask the patient, "Do you have an Advance Directive?" The patient's answer is entered into the Admissions Computer, then when the patient's Admission Summary Sheet is printed out, it will reflect whether the patient has an Advance Directive.

During the nursing admission assessment, the question is again asked, "Do you have an Advance Directive?" The patient's answer is recorded on the Interdisciplinary Assessment Form.

If the patient does not have an Advance Directive, the nurse should ask, "Would you like information about them or would you like to make one?" If the patient answers yes to this, nursing informs Case Management/Social Services, who in turns provides information to the patient.

If the patient states that he/she does have an Advance Directive, the admitting nurse should request the patient produce a copy of it as soon as possible in order for it to be placed on the current medical chart. If the patient states that the Advance Directive is supposed to be on file here at Mizell, Medical Records puts a copy of it on the chart.

An Advance Directive is NOT a "Last Will and Testament"

When medical personnel ask you about an Advance Directive (sometimes called a "Living Will"), they are not asking about a Last Will and Testament, which pertains to personal property and assets.

Many times the patient may not have a "Living Will," but may have a Power of Attorney or a Health Care Proxy. All of these documents are considered Advance Directives and Mizell is required to obtain a copy of it and place it on the current medical chart.

Advance Directives vs. DNR (Do Not Resuscitate) vs. Withhold/Withdraw

Remember an Advance Directive MUST be done only by the patient for himself/herself. An Advance Directive can include any instructions about life-sustaining or life-prolonging measures, along with other instructions that could include resuscitation, organ donation, comfort care, etc.

A DNR (Do Not Resuscitate) can be done by the patient and/or immediate family. It pertains only to reviving. It does not include life-sustaining or life-prolonging measures. It does not cover organ donation, etc.

Withhold/Withdraw is done by the immediate family and can include any instructions pertaining to medical care, treatment, life-sustaining or prolonging measures, comfort care, etc.

DNR and WITHHOLD/WITHDRAW ARE NOT ADVANCE DIRECTIVES.

Completing an Advance Directive form

The packet Mizell is required to use has two forms - a Living Will and a Health Care Proxy. Either form can be filled out separately or both can be filled out in conjunction with each other.

If the patient appoints someone as their Health Care Proxy, the patient needs to talk with that proxy in depth about what the patient would prefer in regards to medical care. The Health Care Proxy has to agree to accept the responsibility and must sign the Advance Directive reflecting that he/she accepts the responsibility.

The LIVING WILL form has two different scenarios for the patient to consider:
(1) Terminally ill or injured
(2) Permanently unconscious

In both scenarios, the Living Will asks the same two questions:
(1) Do you want to have life sustaining treatment?
(2) Do you want to have food and water provided through a tube or IVs?

If both forms - the Living Will and the Health Care Proxy -are completed, the patient must give specific instructions to the Health Care Proxy in regards to what the patient put in the Living Will. The patient must choose between three options to tell the Health Care Proxy:
(1) Obey only what I have written in the Living Will and make no other decisions.
(2) Obey what I have written in the Living Will AND if any other decisions need to be made, I give you the authority to do so.
(3) I have filled out a Living Will, but disregard it and make your own decisions whenever necessary.

There is also a section inside the Living Will where the patient may write additional instructions. For instance, the patient may specify "Do not resuscitate," or he may write "I wish to be an organ donor," or "I want my body donated to science."

Section 3 of the Living Will instructs the patient to list the names of the people that the doctor may talk to about the patient's condition and wishes.

Who can witness a patient's Advance Directive?

Two witnesses are required but they cannot be a relative of the patient by blood, adoption, or marriage, or entitled to any part of the patient's estate. And they cannot be employees of Mizell Memorial Hospital. In short, the witnesses cannot be anyone that would, in any way, benefit from the patient's death.

Does the Advance Directive have to be notarized?

No. But, as stated above, two witnesses must sign it.

Is there a particular form that is required?

No. The State of Alabama says, "any oral statement or written statement would be accepted as a directive." There are several ways to create an Advance Directive: (1) by creating a Living Will;
(2) by creating a Power of Attorney;
(3) by making a verbal statement in the presence of witnesses,
(4) by writing a memorandum to your primary doctor.

There is no particular form that is required. It can be written or oral. It can be written on toilet tissue. You can just tell your doctor and then he documents it in the chart.

Power of Attorney vs. Health Care Proxy vs. Surrogate

If you appoint a Power of Attorney, or a Health Care Proxy, they can override your Living Will. As stated earlier, a Power of Attorney can be given authority to make medical decisions and financial decisions. A Health Care Proxy can only be given authority to make medical decisions, not financial decisions.

If there is no Living Will, or Power of Attorney, or Health Care Proxy, then the law says the next of kin has to make the decisions. This person is called a Surrogate. The order of priority of persons as surrogate is:
(1) a judicially appointed guardian; then
(2) the spouse, unless legally separated or party to a divorce proceeding; then
(3) adult children, then
(4) parents, then
(5) adult siblings.

If there are no next of kin to be a surrogate, or if the family members cannot reach an agreement, then they need to request that the Probate Court appoint a guardian. When that happens, the guardian is the ONLY person allowed to make medical decisions. The surrogate is protected by the law and cannot be sued if the surrogate was acting in good faith.

What about common-law spouses?

Common-law spouses have to show documentation of being common law. If that is done, then the Common Law spouse has precedence over children.

What happens if a critical patient comes into the ER and there is no family around and the patient does not have an Advance Directive?

If the patient's condition becomes life threatening and goes into a Code situation, the Emergency Room doctor makes the decisions.

Important points that should be stressed in an Advance Directive

(1) Life sustaining measures in the case of a terminal illness or injury
(2) Life sustaining measures in the case of permanent unconsciousness (vegetative state)
(3) Artificial nutrition and hydration (feeding tubes and IV's) in the case of a terminal illness or injury
(4) Artificial nutrition and hydration (feeding tubes and IVs) in the case of permanent unconsciousness (vegetative state)
(5) HealthCare Proxy

If you have an Advance Directive and it does not address all the above issues, you need to update your Advance Directive immediately.

If you have an Advance Directive that was done on a form called a DECLARATION, then most likely it is already outdated because it probably does not cover artificial nutrition and hydration. Also, it probably does not mention the option of appointing a Health Care Proxy.

Who you can call to get help or information

(1) South Alabama Regional Council on Aging in Dothan
1-800-239-3507 or 334-793-6843
(2) Clayton Davis - free legal services for senior citizens at 1-888-671-5246 or 334-671-3990
(3) log on to the following website: www.legislature.state.al.us/CodeofAlabama/1975/22-8A-4.htm