The Importance of Advance Directives
My wife is undergoing some surgery tomorrow morning. The surgery prompted us to review her advance directives to ensure they were current and in good form. While her advance directives (Living Will, Designation of Health Care Surrogate, HIPAA Release and Authorization, and Durable Power of Attorney) were all in place, and named the proper people, we have prepared and executed new documents for her. Why would we prepare new documents rather than rely on the existing documents that were in good order? There are a few reasons.
First, laws change with every legislative session. It's been about five years since she last executed her advance directives. The legislature has met five times since then, and is currently in session. If there has been a change in the law, the five year old documents may not incorporate all of the provisions that are allowable by law, or may contain provisions that are no longer recognized. A review to determine the documents are legally current can avoid potential problems with implementation of the advance directives.
Secondly, in my experience, physicians often are reluctant to follow, or totally ignore, advance directives that are "stale." Many physicians consider a living will "stale" after one year - some after six months. The rationale is that a document executed more than a year ago may not accurately reflect the "current" desires of the patient. Refreshing your advance directives can avoid that issue.
A third reason for reviewing older documents is to ensure that the people you have appointed to make decisions for you are still the people you want making those decisions. In our case, that wasn't a problem. However, almost daily I have clients who express the desire to change their designated representatives. The reasons include death of the designee, mental incapacity by older designees, divorce, the maturity or immaturity of an adult child, geographical relocations, strained or severed relationships, and many others. Imagine having your ex-spouse, with whom you have just concluded a lengthy and acrimonious divorce, being called to make decisions on your medical treatment or end of life decisions!?
In Florida, there haven't been any substantive changes in the law covering advance directives over the past few years. However, change is brewing. A growing number of states are promoting a new program to help guide physicians with a patient's specific instructions. The programs, known as POLST (Physician Orders for Life-Sustaining Treatment), are designed to complement advance directives - especially living wills. The living will allows you to express in broad terms your desires with regard to the application of life sustaining procedures in the event you are unable to express those desires through communications with the physician or medical staff. A POLST is signed by both the patient and the doctor. It provides for specific treatment instructions and remains a part of the patient's medical records.
An article in today's Wall Street Journal provides a good overview of the POLST movement, which has now been adopted in some form by 14 states, and is under consideration in an additional 16 states, including Florida. For more detailed information on POLST, click here, and for a significant compendium of articles and information about advance directives generally, click here.
As more baby boomers move into their sixties, seventies and ultimately eighties, end of life issues will continue to grow in concern among the populace and the medical profession. To ensure that your desires are properly followed, be sure to periodically review your advance directives to see that they are current, both legally and personally..
If you would like to "refresh" your Living Will and Designation of Health Care Surrogate, we offer a FREE download at our website of the Florida statutory Living Will and the Florida statutory Designation of Health Care Surrogate.
First, laws change with every legislative session. It's been about five years since she last executed her advance directives. The legislature has met five times since then, and is currently in session. If there has been a change in the law, the five year old documents may not incorporate all of the provisions that are allowable by law, or may contain provisions that are no longer recognized. A review to determine the documents are legally current can avoid potential problems with implementation of the advance directives.
Secondly, in my experience, physicians often are reluctant to follow, or totally ignore, advance directives that are "stale." Many physicians consider a living will "stale" after one year - some after six months. The rationale is that a document executed more than a year ago may not accurately reflect the "current" desires of the patient. Refreshing your advance directives can avoid that issue.
A third reason for reviewing older documents is to ensure that the people you have appointed to make decisions for you are still the people you want making those decisions. In our case, that wasn't a problem. However, almost daily I have clients who express the desire to change their designated representatives. The reasons include death of the designee, mental incapacity by older designees, divorce, the maturity or immaturity of an adult child, geographical relocations, strained or severed relationships, and many others. Imagine having your ex-spouse, with whom you have just concluded a lengthy and acrimonious divorce, being called to make decisions on your medical treatment or end of life decisions!?
In Florida, there haven't been any substantive changes in the law covering advance directives over the past few years. However, change is brewing. A growing number of states are promoting a new program to help guide physicians with a patient's specific instructions. The programs, known as POLST (Physician Orders for Life-Sustaining Treatment), are designed to complement advance directives - especially living wills. The living will allows you to express in broad terms your desires with regard to the application of life sustaining procedures in the event you are unable to express those desires through communications with the physician or medical staff. A POLST is signed by both the patient and the doctor. It provides for specific treatment instructions and remains a part of the patient's medical records.
An article in today's Wall Street Journal provides a good overview of the POLST movement, which has now been adopted in some form by 14 states, and is under consideration in an additional 16 states, including Florida. For more detailed information on POLST, click here, and for a significant compendium of articles and information about advance directives generally, click here.
As more baby boomers move into their sixties, seventies and ultimately eighties, end of life issues will continue to grow in concern among the populace and the medical profession. To ensure that your desires are properly followed, be sure to periodically review your advance directives to see that they are current, both legally and personally..
If you would like to "refresh" your Living Will and Designation of Health Care Surrogate, we offer a FREE download at our website of the Florida statutory Living Will and the Florida statutory Designation of Health Care Surrogate.
Posted by Randy Coleman at 3/15/2011 9:59 AM 
Categories: Do Not Resucitate Order, Living Will, Advance Directives in Florida, Durable Power of Attorney, Health Care Power of Attorney, estate planning, Designation of Health Care Surrogate
Tags: advance directives designation of health care surrogate durable power of attorney estate planning lawyer estate planning attorney estate planning health care power of attorney Jacksonville estate planning attorney living will power of attorney end of life decisions
Categories: Do Not Resucitate Order, Living Will, Advance Directives in Florida, Durable Power of Attorney, Health Care Power of Attorney, estate planning, Designation of Health Care Surrogate
Tags: advance directives designation of health care surrogate durable power of attorney estate planning lawyer estate planning attorney estate planning health care power of attorney Jacksonville estate planning attorney living will power of attorney end of life decisions
Great post. In light of the importance of continually updating advance directives, what are your thoughts on legislation that permits individuals to execute advance directives digitally? Are we moving in that direction inevitably, or are there major concerns to using digital signatures on advance directives? Full disclosure: I'm a law student writing an article on this subject. I would love to cite this post in the article.
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Clearly, all things legal are moving toward digital, whether it be digital signatures on legal documents or filing documents with the courts. There now are specific provisions in the Florida Rules of Civil Procedure and with all federal courts for electronic filing, and digitally signing documents by lawyers for those filings. There are statutes that provide for proper signing of documents digitally that have the full legal impact of original signatures on original documents. There already are many services available for the electronic storage of original advance directives that are accessible to health care providers anywhere in the world through Internet access, email or faxing.
The major concern, in my opinion, about using digital signatures is not the authenticity of the signature, but whether the individual executing the document digitally truly understands and appreciates the implications arising from signing the documents. In my practice, I receive almost as many questions about advance directives, perhaps more, than I do regarding wills and trusts. Most people, after having been educated on available options, have a pretty clear understanding of how they want their property distributed at death, and to whom. Many people have a wide array of questions about the advance directives.
Sometimes there are often conflicting goals associated with advance directives. In one recent case, the client wanted to execute a living will that expressed his desires to avoid life prolonging procedures in the event that he was in a vegetative state. However, he received disability benefits from a private disabiliy insurance policy that paid him significant disability benefits for as long as he lived. Upon evaluating the disability insurance policy and determining that it in fact would continue to pay benefits if he were on life support, he decided the value of the disability benefits to his wife far outweighed his desire not to be maintained on life support. He ultimately chose to execute a living will that expressly stated that he want all forms of life prolonging procedures to keep him alive as long as possible, no matter his physican or mental state.
This is but one example of why, even, or perhaps especially, in the area of advanced directives the counsel of an experienced estate planning and elder law attorney can be beneficial.
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I stumbled on this article while researching a living will issue I am experiencing pertaining to my mother. I appreciate the info. I am in the process of trying to get the doctors to acknowledge my mother's living will, and sometimes feel like i am arguing with a wall. 20 year COPD patient. Congestive heart failure, Afib, Sicsinus syndrome. She's been on a ventilator for 2 months. 4 days ago the Dr. told me she would be on a ventilator the rest of her life. I told him to prepare to follow her guidelines. Yesterday, he says she was able to tolerate CPAP for 4 hours over the weekend, so he wants her to see a psychiatrist. Well, she can not talk. She has a tube down her throat. This goes on and on. From my experiences. a living will is not worth the paper it is written on. Thanks for the article, and letting me get this off of my chest. ED
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