Advance Care Planning in Arizona

It’s easy to think that there’s time for advance planning later, especially if you’re young and healthy. Yet, time passes faster than we expect and health status can change surprisingly fast.

Wherever you are with health, the time for advance planning is now. After all, having the paperwork and not needing it is much better than being without it in a crisis.

In a previous post, we discussed the different types of advance planning paperwork, so today we’re looking at  how these documents are used in Arizona and what you can expect.

Legal Requirements in Arizona

For Living Wills

Arizona does not have a legally required state format for Living Wills, which makes it possible to use forms like Five Wishes. People can even create their own Living Will. This must have clear intent, be in writing, and be signed and witnessed/notarized correctly.

In Arizona, the document needs to be notarized OR witnessed (having both notarization and a witness is not required or recommended). This differs from some other states where two signatures are needed. 

The individual who witnesses or notarizes the document cannot be:

• Under 18
• Related to the principal by blood, marriage, or adoption
• Entitled to any part of the estate
• Appointed as the principal’s agent
• Involved in providing healthcare when the form is signed

While individuals can create an independent Living Will, it’s best to use a recognized form (like Five Wishes or the form provided by the Arizona government) or create your Living Will in consultation with a lawyer. Notably, there are a few legal aspects to consider and using a form or a lawyer will help you ensure you cover all the areas you desire. 

For Power of Attorney Forms

As with Living Wills, Power of Attorney forms in Arizona don’t need to follow a specific format. The requirements are similar to that of a Living Will, and the PoA form needs to be either notarized or witnessed in the same way.

For DNR

Arizona has a specific Prehospital Medical Care Directive form for people to fill out. This form needs to be printed on letter-size or wallet-size orange paper for it to be valid. It must also be signed by the patient (or their healthcare proxy) and a healthcare provider.

In other states, patients often need to request that their physician fills out a DNR form on their behalf. Arizona is different and allows patients to print and fill out most of the form themselves. 

Where Directives Can Be Used

Advance directive documents prepared in other states can be used in Arizona, as long as the treatment options are valid in Arizona. The validity of Arizona documents in other states varies, so it’s important to check the relevant state’s requirements.

Documentation Options

Because there is no required format for Living Wills or PoAs, people in Arizona can create their own versions. If you plan to do so, it’s best to consult a lawyer to ensure the documentation meets all legal criteria. The involvement of a lawyer also decreases the risk of issues when you use the document.

Alternatively, you can turn to a prepared Living Will or PoA form, one that has already been examined for its legal suitability. The Arizona Attorney General site provides links for life care planning forms in English and Spanish, which people can fill out and use.

There is also Five Wishes, which is legally valid in Arizona and presents advance planning questions in easy-to-understand language. This is a great starting point for many people, as other documents can be confusing.

Updating Documentation

Advance directives, including Five Wishes, can be changed anytime, as long as the principal has capacity.

The state will accept the most recent version of the documentation. However, it’s still important to inform anyone with copies that the previous version has been revoked.

You can also write the word revoked on the old document or something similar to reduce the risk of confusion, especially if different people have different versions of the documents. 

If the documents were registered with the Arizona Registry, then you will need to fill out a new registration form and highlight whether you are replacing, revoking, or adding documents to the Registry.

Can the PoA Agent Be Changed When Someone Lacks Capacity?

Generally speaking, the principal cannot change their PoA if they no longer have the decision-making capacity to do so (note, capacity varies between situations, so a person could potentially have the capacity to change their PoA, but not have the capacity for some healthcare decisions). This restriction is an essential aspect of keeping the principal safe.

If the principal is acting against the senior’s best interests, it may be possible to remove them through a court intervention. However, doing so requires clear evidence that they are abusing their position.

If the healthcare proxy is simply making different decisions than other family members would or if the Living Will is not clear for some decisions, it may not be possible to remove the agent.

Can a Living Will Be Changed When Someone Lacks Capacity?

Similar considerations are true when there’s a Living Will. So, once someone no longer has the decision-making capacity to change their Living Will, then it remains as is.

Best Practices for Advance Directives

The term advance directives refers to Living Wills and Power of Attorney documentation, plus documents like Five Wishes that combine the two. Following the practices below will help ensure you get the most benefits from your documents.

Ensure The Documents Are Easy to Find

Living Wills and PoA documents are only helpful if they can be found when needed. Because of this, it’s crucial to keep the originals in a safe and easily accessible location. Give copies to important people, including your healthcare proxy, doctor, and family members. Remember to keep copies for yourself and bring them with you whenever you receive medical attention.

Keep a list of anyone with copies of your advance directives too, as you may need to send them an updated version of the documents and/or tell them that the previous version has been revoked.

Arizona also has a Healthcare Directives Registry, which allows people to upload copies of their advance planning documents, including state forms, Five Wishes, and anything personally created. Uploading to the Registry ensures there is a centralized copy of the forms, which healthcare providers, emergency responders, and relatives can easily access.

Following these steps reduces the risk that healthcare directives go unseen and ensures your wishes are followed.

Consider the Documents You Use and Your Wishes

Premade documents help streamline advance planning but may not cover everything you wish. For example, many forms say that they come into effect when the principal loses the capacity to make their own decisions. Yet, there are many complexities surrounding capacity.

If capacity is likely to cause issues, like for people with mental health diagnoses, personality disorders, or a dementia diagnosis, you might consider providing more details about precisely when the document comes into effect. Similarly, if family conflict or legal challenges seem likely, it’s worth consulting a lawyer to ensure there are no issues.

Also think about the type of PoA you plan to use. There are multiple types, including durable and non-durable PoA, as well as the type of decisions the PoA form covers.

Think About Your Specific Needs

As discussed elsewhere, there are a variety of options within advance planning directives. For PoAs, this includes when the PoA comes into effect, whether the agent’s authority stops when the principal loses capacity, and the types of decisions the agent is authorized for.

You’ll also need to think about:

• Which PoA documents you need. Is healthcare PoA enough or do you need a financial or general PoA too? What about mental healthcare? Arizona has a separate form for this that you can use if you wish.
• Whether you want POLST. POLST translates the themes of your Living Will into specific directions for healthcare professionals. This allows them to follow your wishes faster and decreases the risk of confusion.
• Do the documents cover your wishes? Five Wishes or Arizona’s state forms will be enough for many people. But, you may have wishes not covered in these. If so, you might choose to create your own advance directive documents (just make sure they meet all of Arizona’s requirements).

Communicate Your Wishes Well and Often

Don’t treat advance directives as a substitute for having in-depth healthcare conversations. The more your healthcare proxy, doctor, and healthcare staff know about your end-of-life wishes, the greater the chance that these will be followed.

Notably, a Living Will is unlikely to cover every healthcare situation. Your healthcare proxy may need to interpret the requests of your Living Will and make decisions as the moment requires.  

It’s also helpful to talk to other people about your wishes, including your adult children, siblings, and doctor. This way, many people will know your values and wishes for care, reducing the risk of conflict and making your agent’s job easier. 

Your conversations should also include information about why these things matter to you. Doing so helps people understand your values and may make some decisions easier.

Choose The Best Agent

The agent you choose for your PoA is responsible for ensuring your wishes are carried out. This often involves a decent amount of planning, logistics, and paperwork, plus advocating for you within the healthcare system.

The complexity of the role means that some agents will perform it much better than others.

You’re looking for someone who is willing and able to be a strong advocate, who lives locally and has enough time and resources to invest in the agent role. This individual might be a close family member, like an adult child or a spouse, but it could also be someone further removed.

We discuss other aspects of selecting an agent in this article.

Have a Backup Agent

You can change the agent in your PoA any time, as long as you have decision making capability. Things get more complicated after that point, as agents cannot give the position to someone else. All they can do is decline to perform the role anymore, at which point only the courts have the authority to authorize a new agent.

Because of this, it’s crucial to name a backup agent in the documentation. This person can then become the agent if the first named person cannot do so for any reason. After all, life is inherently unpredictable. There’s no way to guarantee that your desired agent will be able to do the role when the time comes.

Review Documents Regularly

Because wants and needs often change over time, reviewing and updating your advance directives regularly is crucial.

Old advance planning documents don’t expire and are still legally valid regardless of how much time has passed. However, older documents can be more difficult to use. For example, your desired agent may no longer be able to fulfill the role or treatment options may have changed significantly.

The following situations are important triggers updating your documents.

• If your relationship or marital status changes.
• If there is a birth or death in your close family.
• If there has been a different major life event.
• If there has been a major life change for your named agent, especially one that may impact their ability to perform the role.
• Even if nothing else has changed, it’s best to review your advance directives roughly every 10 years.

Always Revoke Old Documents

In Arizona, revoking advance planning documents is as simple as creating new versions. The one with the most recent date will be used.

Despite this, it’s worth taking some extra steps, like the following.

• Contacting anyone with versions of the old documents and informing them you have a more updated version.
• Providing the same people with the updated version of your advance directives.
• Writing revoked on documents that are no longer up-to-date.
• Updating any documents held in registries.

These extra steps reduce the risk of confusion.

What Happens Without Advance Directives?

People without Power of Attorney

If someone loses decision making capacity without PoA paperwork or a court-appointed guardian, a surrogate is chosen. The criteria and priority for choosing the surrogate varies between the states. In Arizona, surrogates are chosen based on the following hierarchy:

• Spouse (unless the patient and spouse are legally separated)
• Adult child. If there is more than one child, majority consent is needed before consulting a surrogate.
• Parent
• Domestic partner
• Brother or sister
• Close friend

If there is no suitable surrogate, then the courts may need to be involved and appoint a guardian.

These approaches mean that someone will always be responsible for decision-making. Even so, having a surrogate or guardian appointed in this way has implications.

• The PoA may not be the person the principal would have chosen.
• The chosen PoA may not be suitable.
  • They may have very different values to the principal.
  • They may not know the principal well.
  • They may not have the mental, emotional, or financial resources for the role.
  • They may not want the best for the principal or may have biases that affect their decisions (such as adult children who were abused when they were young).
• The order of priority can be problematic in some situations. For example, a domestic partner or close friend may know and care for the principal much better than their adult child or parent, yet they are further down the list.

People without a Living Will

If there is no Living Will, then the person responsible for making decisions for the principal will need to use their knowledge of the principal to make decisions, along with any other evidence. This mightn’t be a big issue if the decision maker is a family member who has talked with the principal about their end-of-life wishes. However, the lack of a Living Will can present problems in some situations, including:

• If the appointed surrogate or guardian doesn’t know the principal well.
• If the principal never talked about their end-of-life wishes.
• If the decision maker has different values or religious beliefs than the principal.
• If family members disagree on what the principal would want.

If there isn’t a Living Will, the decision maker must first base their decisions on the patient’s known wishes, then on the patient’s values. When wishes and values aren’t well known, the decision maker must instead make good faith decisions based on what’s in the best interests of the patient.

Other Implications of No Advance Directives

If the individual has talked to others about their wishes, the lack of advance directives may not seem like a big deal. This is particularly true if the default surrogate is the one the individual would have chosen anyway (e.g. their spouse).

Even so, there are potential issues to consider.

For one thing, without written information, surrogates are relying on their memory and perspectives of the principal’s wishes. These may not be accurate and may not cover all potential healthcare decisions.

Not having written directives can also be much more stressful for everyone. The appointed surrogate may be much more worried about making the right decision and the lack of clarity can easily contribute to family conflict.

Differences Between States

We’ve been talking specifically about advance care planning in Arizona. While many of the principles apply in other states as well, there are notable differences to be aware of.

• Terminology. States may vary in the terms used to refer to aspects of advance care planning, like the name given to healthcare proxies and whether medical orders are called POLST, MOLST, MOST, or some other variation.
• Legal requirements. Some states have specific formatting requirements for their documents, while others are more flexible. Also, the rules around signing and notarization vary.
• Legal Weight. States may differ in the legal weight of different documents compared to each other, particularly Living Wills vs PoA. This is especially important in cases where the Living Will is unclear or where some of the specific requests go against the senior’s values.
• Amending or Revoking Documents. These processes can vary between states, with some having specific procedures for revoking documents and others having more informal approaches.
• Transferring Between States. While some states honor forms created elsewhere in the United States, others require new state-specific paperwork. This becomes crucial in cases where the principal moves from one state to another and may also be relevant if they visit another state and experience a medical emergency. This is one benefit of Five Wishes, which is now valid in almost all states.
• Surrogate Decision Makers. When no PoA has been completed, a surrogate decision-maker is typically appointed. The hierarchy used to determine who this individual is varies between states. Some states also include other criteria, like considering the availability of potential surrogates. 

Final Thoughts

Advance care planning is crucial for receiving the treatment you want when you can’t speak for yourself. Everyone should have the documents in place, even if you’re young and healthy. After all, a person’s health can change suddenly and dramatically.

Five Wishes is the best place for many people to begin. This combined document acts as both a Living Will and a Power of Attorney, while also using plain language to make it easy to follow.

Five Wishes also includes additional questions relating to spiritual and emotional wishes, ones you don’t find in most Living Wills. While these aspects aren’t legally binding in the way that a Living Will is, your agent and healthcare professionals should try to honor your wishes as much as possible.