Advance Directives for Health Care – Make Your Wishes Known
People have a right to make their own health care decisions. Advance Directives for Health Care (ADHC) can help people communicate their treatment choices if there comes a time when they can’t tell what they want.
The ADHC is used to instruct medical personnel when to withdraw or withhold life-sustaining procedures as well as to record a patient’s wish to receive all available medical treatments.
An ADHC is a legal document that tells your doctor how you want to be treated if you are terminally ill or permanently unconscious. An ADHC combines the features of a Living Will and the Health Care Power of Attorney into one form.
Our estate planning team often helps clients with this form and frequently answers questions about different sections that can sound confusing. In the video Advance Directive for Health Care – Amy’s Story, my dad, Irv Ginsburg, and I share our personal experience with the ADHC for my mother when she was battling cancer for the third time. The video also takes a deep dive into the ADHC specifically for TN, which is also commonly referred to as an Advance Care Plan and is available at tn.gov.
In addition to the information shared in the video, we also wanted to provide answers to our clients’ most frequently asked questions regarding the ADHC.
Advance Directive for Health Care – FAQs
Q: Isn’t the ADHC only necessary for “older” people?
A: At any age, a medical crisis could leave someone too ill to make his or her own health care decisions. Even if you are not sick now, making health care plans for the future is an important step towards making sure you get the medical treatment you want even when doctors, family members, or those you appoint have to make decisions for you. Any competent adult or emancipated minor can complete an ADHC. For example, in the COVID-19 pandemic, many people of all ages are being quickly affected, and they may not have even thought of their health care treatment preferences yet or made them known.
Q:Where can I get the ADHC form?
A: Each state has its own ADHC form, and sometimes they are called different things, such as an Advance Care Plan. The Tennessee form available online is two pages, and the signature has to be either witnessed by two competent adults or by a notary public. Please contact us if you need access to another state’s form.
Q:What does it take to complete an ADHC?
A: Once the form is filled out, the signature must be witnessed by two competent adults or notarized by a notary republic. Witnesses may not be:
- The person being appointed
- At least one witness must not be related by blood, marriage, adoption, or entitled to any portion of the estate.
- Financially responsible for the individual’s medical care
- Surrogate; or
- The attending physician
Q: Who is the “agent,” and how do you choose one?
A: The agent is the person you want to make your health care decisions for you should you not be able to on your own. This person needs to be someone you trust and who you have discussed your health care wishes with. This person should be able to follow your wishes no matter how he/she may personally feel in any circumstance.
Q: Can the ADHC be witnessed and notarized remotely given social distancing guidelines?
A: As of April 9, 2020, the requirement in Tennessee for “in person” witnessing and notarization of certain documents including the ADHC is suspended until May 17, 2020, per Gov. Bill Lee’s Executive Order No. 26. Our article Remote Witnessing and Notarizing Is Now an Option for Estate Planning Documents provides the details of this order and explains how signings can work during this time of limited in-person meetings.
Q: Who needs copies of the ADHC?
A: Your agent, your doctors, the hospital where you are being treated, and your attorney should have a copy.
Q: When does the ADHC become effective?
A: Unless otherwise specified in the document, the authority of the agent becomes effective only upon determination that you, the individual, lack capacity and cease to be effective upon a determination that you have recovered capacity. This does not take away your right to make health care decisions if you are capable of making them.
Q: How often should you review this document?
A: We recommend you review your ADHC at least yearly to make sure you still have the same wishes and the person you have appointed is still the one you want to make decisions on your behalf.
Q: I think I still need more information about this important document. Where can I learn more about the ADHC and how it applies to me and my loved ones?
A: Please don’t hesitate to contact our team with questions related to the ADHC and how to make sure your health care wishes are known and protected. You can also check out our past article Advance Directives: Are You Ready in the Case of an Emergency? for more information.
If you have questions about an advance directive or would like help tailoring one to suit your unique situation, please contact me – Amy Boulware – or a member of our estate planning team.
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The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings, and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. In some cases, the underlying legal information is changing quickly in light of the COVID-19 pandemic. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship. Please contact your legal counsel for advice regarding specific situations.