Directing Your Health Care with an Advance Health Care Directive–with the Stress on the Word Advance

I have an 87 year old client who was born, raised, and has lived in Wyoming her entire life–that is, except for the five or six winter months she has spent in southern Utah each of the last few years. She’s at that age when her health and her health care are becoming an ever more important concern to her. One of those concerns, of course, is what to do should she become sick and unable to express her wishes about end-of-life decisions. What can she do to make those decisions now and insure that her wishes are carried out by her loved ones and doctors?

The Tools. The answer–in Wyoming, Utah, and most other states–is the Advance Health Care Directive, a document or documents in which an individual does one or both of the following: 1. Appoint and give authority to a health care agent (a son or daughter, for example) and 2. Give instructions about those difficult end-of-life decisions (whether to have a feeding tube, for instance).

As in most areas of medicine and the law, the terminology or jargon people use to describe these documents can be confusing–it certainly confused me when I first began studying the subject. But it the end, it’s all rather simple. The first document, the one appointing a health care agent, is no more than a very specific power of attorney or POA. If it’s your POA, then you are the principal and the appointed person is your health care agent. Essentially, you empower your agent to act as you would act if you were still able, to stand in your shoes in other words.bp-cuff

The second document, the one with all the instructions, is the so-called living will. Generally, the living will tends to be more specific than a health care power of attorney. Don’t want feeding tubes, CPR, artificial ventilation, that sort of thing? You say so in a living will. That’s not to say, you can’t be that specific in a health care power of attorney. But think of it this way: with a health care agent, you are giving authority to act in your place to someone you know and who knows you–probably very well. That person may not need very specific instructions because of that knowledge. A living will, however, tends to be directed more generally at not only your family and friends, but also at doctors, nurses, and others who may not know you so well. With people like that, you want to be very specific.

Both Wyoming and Utah have fill-in-the-blank forms for both documents. They’re free and generally in the same booklet or file. Hospitals located in each state often have their own versions. Here’s one from Wyoming Medical Center, a hospital based in Casper. Utah-based Intermountain Health Care provides similar forms. As both hospital-provided forms stress, you don’t have to both appoint an agent and give directions. In fact, at the beginning of both forms, you’ll find a section where you can say that you DO NOT want to choose an agent for your health care.

For what it’s worth, in many, if not most, cases, both documents should be used, the living will/instructions document backing up the health care power of appointment. In that case, the living will is essentially saying, “and to make myself perfectly clear: I have discussed these matters with my health care agent, and what we discussed is reflected in my living will. That said, if there’s any chance that a provision in my living will contradicts any authority I granted my agent in my power of attorney, the document with the more expansive powers governs.”

Do You Need a Lawyer to Fill Out the Forms? No. The forms I’ve linked to above meet the requirements of state law. So long as you fill them out correctly, sign, and have them properly witnessed, they are better than nothing–much better.

But the question isn’t do you need a lawyer? The question is should you consult an attorney about a health care directive? I think the answer is yes. For one, a good advisor can help you carefully consider the many issues that come into play in choosing a health care agent. Good attorneys are trained to think dispassionately and out of the box. Not everyone is suited to make end-of-life decisions, for example. A good advisor will help you choose someone who is. Likewise, deciding in advance whether you want a feeding tube or CPR are hard choices. A good advisor who has been down that road before with other clients, will be a good guide for you.

Beyond that, health care directives are just one part–an important part–of a more comprehensive estate plan. As I make clear on this website’s home page, virtually everybody needs an estate plan. Read that page again and see if you agree. If you see yourself on the list for “Do I need estate planning?” then we should talk–about that plan–and an advance health care directive.

But back to my 87 year old client. Remember, she now spends significant time in both Wyoming and Utah and has doctors in Montana. In our planning together, one of her concerns is that her wishes for end-of-life health care be carried out whether she is in Wyoming enjoying the great summers, in southern Utah soaking in the warm winter sun, or shopping in Billings, Montana. Though the laws governing advance health care directives are quite similar in all three states, there are some important differences, differences that could call into question a Utah directive in Wyoming or Montana and vice versa, at least in the eyes of an overly careful hospital administrator.

That said, all three states have provisions in their laws that either grant reciprocity to health care directives from other states or seem to. Utah law states that a health care provider or facility,

may, in good faith, rely on any health care directive, power of attorney, or similar instrument (a) executed in another state . . . (Utah Code §75-2a-121.  Reciprocity — Application of former provisions of law).

Montana law is equally explicit:

 A declaration executed in a manner substantially similar to 50-9-103 in another state and in compliance with the law of that state is effective for purposes of this chapter (Montana Code §50-9-111. Recognition of declarations executed in other states).

Wyoming law is not so clear. In fact, an attorney I spoke with at one of Wyoming’s largest hospitals suggested it may take two sections of the Wyoming Code to do what Montana and Utah did in one, and even then things remain a little murky. In fairness, the attorney also told me that particular hospital honored directives from other states as did the other Wyoming hospitals the attorney was aware of.

Here is the relevant wording of the two sections of the Wyoming Code I just referred to. You be the judge:

§35-22-408.  Obligations of health care provider. . . . a health care provider or institution providing care to a patient shall:
     (i) Comply with an individual instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health care decisions for the patient . . .

And

§35-22-416.  Uniformity of application and construction. This act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject matter of this act among states enacting it.

Like I said, it appears that all three states recognize directives from other states. Nevertheless, when my client and I are finished, she will have an advance health care directive–both the POA and the Living Will–that complies with the provisions of the law governing such directives and powers of attorney in all three states.

Updated to include the relevant statutes from Utah, Wyoming, and Montana and to discuss reciprocity in more detail.

 

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