Advance Directives and Living Wills: An Elder Law Attorney’s Guide

Aging couple signing a living will

By: Samantha L. Shepherd, J.D., certified elder law attorney

When a crisis is at hand and a decision needs to be made about how much or how little care people want when facing a terminal illness, they’re often unable to express themselves. That’s why it’s a very good idea to create advance directives. When decisions about end-of-life care are made ahead of time, aging parents can be assured their wishes will be known. Research shows people who use advance directives are more likely to get the care they want at the end of their life.

In addition, advance directives provide family members with peace of mind. Making choices in advance and giving loved ones the needed legal authority removes enormous pressure.

What is an advance directive? Is it the same as a living will?

While both these documents can be a part of your advance directives, they serve different purposes.

A living will is a document that gives instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. The living will states under what conditions life-sustaining treatment should be terminated. If you would like to avoid life-sustaining treatment when it would be hopeless, you need a living will. A living will takes effect only when you’re incapacitated and is not set in stone — you can always revoke it at a later date.

When drawing up a living will with an elder law attorney, you need to consider the various care options available. You need to think about whether you want care to extend your life no matter what or only in certain circumstances. A living will can dictate when you want a ventilator, dialysis, tube feeding, blood transfusions, and other life-saving or life-prolonging options.

A DNR is a different document. A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a living will, which only goes into effect if you’re unable to communicate your wishes for care. Everyone can benefit from a living will, while DNRs are generally for very elderly and/or frail patients for whom it wouldn’t make sense to administer CPR.

What is a medical power of attorney? Is it the same as a health care proxy?

A medical power of attorney, also known as a health care proxy or health care agent, is someone who makes health care decisions for you if you are unable. They are there to ensure your wishes are carried out. Normally one person is appointed your health care proxy, though it’s common to appoint one or more alternates (successors) in case your health care proxy is unavailable.

Should I talk to my doctor about advance care planning?

Yes! As of January 1, 2016, Medicare pays physicians for speaking with Medicare beneficiaries and their families about different options for care and treatment at the end of life including hospice and palliative care. You can discuss your specific health conditions and how they might influence your future health. Under the new regulations, the advance care planning discussions can take place during the Medicare annual wellness visit or at a separate appointment. They are a reimbursable benefit under Medicare Part B and there will be a copayment if the conversation is not part of the annual wellness visit.

It’s also a good idea to talk about end-of-life care decisions with other health care professionals who know you and your current health status.

How do I get an advance directive during the coronavirus pandemic?

It’s not too late to get an advance directive, and it’s a good idea to do this now. A majority of states have passed legislation or have an executive order to allow remote notarization so you don’t have to leave your home. The National Academy of Elder Law Attorneys (NAELA) has a list of states allowing virtual signing of advance directives.

States set different requirements and some states require witnesses in addition to notaries. To find an experienced elder law attorney in your state, use NAELA’s “Find a Lawyer” tool.

Now, in many states, you can work with your lawyer remotely via FaceTime, Zoom, GoTo Meeting, Teams, or another virtual means to sign a medical directive.

Will my advance directive work in another state?

Making sure your end-of-life wishes are followed no matter where you happen to be is important. If you move to a different state or split your time between one or more states, you should make sure your advance directive is valid in all the states you frequent.

Each state has its own laws setting forth requirements for valid advance directives and health care proxies. For example, some states require two witnesses, other states require one witness, and some states do not require a witness at all.

Most states have provisions accepting an advance care directive that was created in another state. But some states only accept advance care directives from states that have similar requirements, and other states do not say anything about out-of-state directives. States can also differ on what the terms in an advance directive mean. For example, some states may require specific authorization for certain life-sustaining procedures such as feeding tubes, while other states may allow blanket authorization for all procedures.

To find out if your document will work in all the states where you live, consult with an attorney in the state.

Final steps for living wills

Your living will or advance directive goes into effect as soon as you sign it in front of the required witnesses or notary. This may now happen virtually in many states. It remains in effect until you change it.

Make several copies of the completed document. Keep the original in an accessible place, and note on photocopies where the original is located. Do not put the original in a safe deposit box. Give copies to your medical power of attorney/health care proxy and alternate as well as your doctor.

Once the process is complete, you will know that you’ve ensured you will receive the end-of-life medical treatment you want — no more and no less — and given your family peace of mind.

Samantha L. Shepherd, J.D., is a certified elder law attorney and former president of the Missouri chapter of the National Academy of Elder Law Attorneys (NAELA). She is the managing attorney of Shepherd Elder Law Group in Overland Park, Kansas, and Hutchinson, Kansas.