Advance Planning FAQs

Advance planning refers to the process of planning for the future. This includes considering potential financial, estate, legal, and healthcare needs. We’ve discussed different aspects of this in other posts, including what is involved in being a healthcare proxy, the different types of forms, and the difference between POLST and a Living Will.

Today, we’re digging into some of the interesting questions and complexities that surround advance care planning. If we haven’t answered your question here, feel free to email us or check out our consulting service.

What is Advance Care Planning?

As the name suggests, advance care planning involves thinking about and preparing for future healthcare needs. Specifically, you’re creating plans for times when you might not be able to make decisions for yourself.

What Are the Different Forms?

The most significant forms are the Power of Attorney (PoA) and Living Will. Crucially, you’re looking a durable healthcare PoA. This allows the principal to give authority for healthcare decisions. The term durable means that the authority lasts even once the patient can no longer make decisions for themselves.

You may hear of other forms too, like the following.

• General PoA, Financial PoA, and other PoAs. You may need multiple PoA forms to grant authority for other types of decisions.
• DNR. A Do Not Resuscitate order ensures that emergency responders don’t try to resuscitate on scene.
• Physician Orders for Life Sustaining Treatment (POLST). These orders translate the desires in a Living Will into actionable medical orders, making it easier for healthcare staff to meet the requests in a Living Will.

These forms are only relevant in some situations and are often less urgent than your healthcare PoA and Living Will. In fact, your healthcare proxy will often be able to work with your physician to complete DNR and POLST forms.

What is Five Wishes?

Five Wishes is a national advance care planning program. It offers a single form that includes a Living Will, PoA, and wishes for emotional and spiritual needs. The form is written using everyday language, making it more accessible than most other advance directives.

Because Five Wishes already contains a Living Will and PoA, you don’t need to complete these documents separately.

What’s The Goal of Advance Care Planning?

Advance care planning actually has multiple crucial goals.

The first is to create legal paperwork, which includes documenting end-of-life wishes and designating decision making authority. Such paperwork provides protection if you can no longer speak for yourself.

There is also a second important goal – to encourage conversations.

This is crucial because advance directives will never cover every situation. Healthcare is much too complex for that. So, it’s important to talk with family members about end of life wishes and what matters most to you.

Finally, advance care planning has an aspect of accepting uncertainty and the challenges that lie ahead.

Talking about a person’s final days and what might happen can help families come to grips with what’s outside their control. This is particularly true for dementia, as families may be researching the condition as part of their planning – a process that will likely teach them many new things.

Which Has More Authority – The PoA or the Living Will?

Living Wills tend to have more legal authority than PoAs, in that the healthcare proxy must make decisions based on the information in the Living Will.

However, the Living Will alone may not provide enough information. The proxy must often interpret the wishes and determine how they apply to the current situation. In such cases, the proxy needs to make decisions based on the person’s known wishes, values, and best interests.

There are complexities here.

First, the proxy may be able to override the Living Will in some situations, such as:

• If there’s sufficient evidence that the principal changed their wishes since creating the Living Will
• If the Living Will doesn’t consider the situation at hand
• If medical treatments have improved significantly since the Living Will was first created
• If the Living Will isn’t legally valid, such as if it was created under duress or the principal had impaired cognition
• If parts of the Living Will can be interpreted in multiple ways or there are contradictions in the Living Will

When and how the Living Will can be overridden strongly depends on the state, as each state has its own specific laws on the topic. For example:

• Many states require the proxy to follow the Living Will except in highly specific situations (like those listed above).
• Some states allow the principal to determine how much authority to give the proxy. This allows patients to say whether the Living Will should be followed strictly or whether it should be used just as a guide.
• Some states provide little information about what should happen if there’s a conflict between the Living Will and the proxy.
• There are even a few states, like Georgia, where the healthcare proxy takes precedence over the Living Will in cases of conflict.

Do Living Wills Actually Work?

There is much debate on this topic.

One issue is that a person’s imagined wishes may differ from their actual wishes. After all, who we are at the moment impacts the interventions we think we’ll want in the future. Yet, as we grow, we go through changes in our experiences, values, and goals, which can all impact our decisions.

There’s also the question of whether the Living Will is followed.

While healthcare staff are obliged to respect your wishes, the Living Will may not be found or accepted at the right time. Despite everyone’s best efforts, some combinations of situations can mean that wishes aren’t followed.

Also remember that Living Wills won’t cover every single possible situation – there are simply too many variations.

This is why it’s also essential to have PoA paperwork set up. Your healthcare proxy plays a crucial role in the process, as they advocate for your wishes. Having someone to advocate for you is powerful because the healthcare system often has a curative and life-extending focus. While that focus is often helpful, it can mean people need to push to get their wishes followed.  

Can Your Wishes Be Ignored?

In general, healthcare providers are required to follow the wishes in your Living Will, provided they are medically reasonable. A physician may refuse specific requests on moral grounds or if the request goes against the institution’s policy. However, if they make such a refusal, they’re responsible for transferring the patient to a suitable physician or facility where their wishes will be met.

That said, the information in a Living Will isn’t always realistic for the person’s situation – as real life medical situations are often more complex than the Living Will considers. When this happens, medical staff and family members may do their best to ensure the spirit of your wishes are upheld, even if some specifics of the Living Will can’t be followed.

For example, people who wish to die at home may actually end up dying in hospital, such as when their care needs are too high or when they end up in hospital after an accident.

How Do You Change Your Documents?

In general, changing advance directives is as simple as creating a new version that reflects your current wishes – as the most recent document is the valid one.

However, doing this and nothing else could easily create issues, as an older document could be found before the new one. As a result, the following steps can be helpful as well.

• Send copies of the new document to anyone currently holding copies of your advance planning documents and tell them that the old versions have been revoked.
• Write ‘Revoked’ on all old versions.
• If your documents have been registered in a directives registry, you may need to fill out a new registration form, stating that you are replacing or revoking documents currently in the registry.
• Change any related forms that are affected by the new document, such as forms that state your current agent. Your state may offer advice or forms to help you do so.

For example, In Arizona, revoking a healthcare directive can be as simple as creating a new version, orally telling the healthcare provider, or any other act that demonstrates the intent to revoke the healthcare directive. Nevertheless, it’s worth being as thorough as possible to make things easier in emergencies. 

Do You Need a Lawyer to Complete Advance Planning Paperwork?

Individuals can generally complete their own advance care paperwork without any input from a lawyer. This is particularly true in Arizona, where there are few legal requirements concerning the language used. However, you do need to ensure that the document is signed and witnessed/notarized appropriately.

If you’re in another state, you’ll need to check the legal criteria for your documents.  

To make things easier, you can use the forms offered by your state or turn to Five Wishes, which is legally valid in all states.

Times Where a Lawyer May Be Helpful

While lawyers aren’t required for advance planning paperwork, they can sometimes make things easier.

One situation is where the principal has highly specific wishes that aren’t covered by Five Wishes or the state form. For example, the principal might wish to provide more details about when the PoA comes into effect or be more precise about the powers that their agent will have. Here, they may need to create their own documents with the help of a lawyer to ensure their needs are met.

Another situation is where the principal isn’t confident in their understanding of the document they’re filling out. Here, a lawyer or an advance planning expert may go through it with them and help ensure that the responses they choose accurately reflect the individual’s wishes.

If Your Family Members Already Know Your Wishes, Why Bother with Advance Directives?

The paperwork ensures there’s a formal legal version of your wishes recorded, so that your wishes are followed even if family members forget some aspects or wish to make their own decisions.

A Living Will is also the piece of paperwork that everyone keeps coming back to, including healthcare proxies, surrogates, and medical staff. The Living Will helps ensure that your treatment matches your wishes and keeps everyone working towards the same goals.

Without a Living Will, there’s a higher risk of conflict, like conflict between family members or between the medical staff and your family. What’s more, such conflict can be substantial and is likely to impact the care you receive.

Also, if you have no paperwork at all, then the state will appoint a surrogate for you, based on the hierarchy of your state. This may mean the surrogate isn’t the one you would have chosen for yourself, such as your aging parent being chosen instead of your domestic partner.

What Does Losing Capacity Mean?

Advance directives often come into effect when an individual loses capacity. Specifically, this refers to when a person can no longer make decisions for themselves.

Loss of capacity is most apparent when someone has lost consciousness or is in a coma. However, it can occur in other situations too, like when someone has late stage dementia and can no longer understand the decisions they are being asked to make.

Generally, decision-making ability is assessed by the person’s physician, who may consider understanding, appreciation, reasoning, and expression as evidence of capacity. If the individual is conscious, they are typically assumed to have capacity, unless there is significant reason to suspect otherwise.

You may have also heard the term competence before. This also refers to the ability to make decisions, but it is a legal assessment through the courts, rather than from a physician. Assessments of competence can be relevant in some situations, like when a guardian needs to be appointed. Still, capacity is used in most other situations, as the process of assessing competence can be time-consuming and expensive.

Do Advance Directives Cover Dementia?

As a general rule, no. Most advance directives focus on end-of-life and may not even mention dementia.

Thankfully, most forms allow you to attach extra information, so you can still specify your dementia wishes. There’s also a Dementia Directive that can be filled out and attached to a Living Will.

Is a Living Will the Same as a Do-Not-Resuscitate Order?

A Living Will and a Do-Not-Resuscitate Order (DNR) are two distinct pieces of paperwork with different purposes. The Living Will provides information about medical care for individuals who cannot speak for themselves. The information is typically used in healthcare settings, including hospitals, and may include requests like do not resuscitate.

In contrast, a DNR focuses specifically on resuscitation measures in emergency situations.

In contrast, a DNR (also called a Prehospital Medical Care Directive in Arizona) focuses specifically on resuscitation measures in emergency situations. For those in Arizona, the DNR form can be found here and can be filled out by the individual and then signed by a licensed healthcare provider.

A Living Will and POLST documents may also provide information about resuscitation, along with other medical procedures, like intubation and types of comfort care. However, these documents typically come into effect later than a DNR form (often when the principal is incapacitated) and aren’t used by emergency responders.

As such, anyone who does not want to be resuscitated should have a DNR form completed, even if the same information is provided in their Living Will or POLST documents.