By Jennifer H. Ballantyne, Elder Law Attorney
Jen Ballantyne is an elder law and estate planning attorney in private practice at Estates and Elders Law PLLC. Jen’s legal career was “inspired by mom.” As a caregiver during her mother’s six-year journey with Alzheimer’s, she developed a passion for helping other families navigate the challenges of aging and disability. Jen graduated from Gonzaga University School of Law in 2014. She and her husband, Gary, share three adult children and eight grandchildren and love to travel worldwide.
Every adult should have “advance directives.” There are several basic types of these legal documents that describe how you want medical decisions to be made for you if you are unable to make them yourself. This is particularly important when the decisions have to do with end-of-life care. This is the care you may need if you suffer from a terminal condition (one that is incurable or irreversible) or you are in what your doctor believes is a permanently unconscious state.
If you or a loved one receive a dementia diagnosis, it is important to create your advance directives soon, while your loved one can still make their wishes known. Dementia is the primary reason people lose their ability to make their own healthcare decisions.
You can use one type of advance directive, also known as a Healthcare Directive or Living Will, to specify what kind of healthcare you want – or do not want – particularly in an end-of-life situation. You can also indicate who you want to make decisions for you – your agent or agents – if you are unable to because of an accident or an illness. This second type of advance directive is a Durable Power of Attorney for Healthcare. The purpose of advance directives is to convince another person, like your doctor, to recognize the authority of the person you name as your agent to make decisions for you.
Having advance directives is important for three primary reasons:
1. Medical science can prolong your life without improving your life. The outcome of treatment might be to prolong your death instead of to extend your life with the hope of regaining your independence or quality of life.
2. The emotional cost is high if your family has to struggle or have conflict over what they think you would have wanted.
3. The cost of long-term or catastrophic care can deplete assets you might wish your family to have.
In Washington, a law called the “Natural Death Act” authorizes any qualified adult to execute a document – a Healthcare Directive – to direct your doctor to withdraw or withhold life-sustaining treatment if you are truly near the end of your life. This includes any medical or surgical intervention that would replace a vital function like breathing. Among the treatments that you can accept or refuse are artificial help with breathing, eating and drinking, as well as pain medication and cardiac resuscitation.
The Healthcare Directive can also contain your wishes for what would matter most to you as you near the end of your life: where you would want to receive care, where you would want to die, who you would want to be with, values or religious beliefs that are important to you, and any life-prolonging treatments that you would want to consider.
A valid Healthcare Directive must be in writing and is signed by the person, called the “principal,” who executes the document, in front of two witnesses. These witnesses cannot be family members, have any claim to your estate or be your doctor or health facility or the doctor’s or facility’s employee. Alternately, you can sign the directive in the presence of a notary public. Once signed, the Healthcare Directive becomes part of your permanent medical record, unless you revoke it.
Durable Power of Attorney for Healthcare
A Durable Power of Attorney for Healthcare allows you to name an agent or agents to make health care decisions for you if you are alive, but cannot make them yourself. “Durable” means that the powers you give your agent endure, even after you become unable to make your own decisions. Your agent can be a family member or friend, but should be someone you trust to make decisions as you would, even if your agent does not agree with you. By law, your agent can never be your doctor, an employee of your doctor or anyone who works in your care facility, with some exceptions.
Your agent has the power to access your medical records and personal information. Your agent can employ and terminate health care personnel treating you; give, withhold or withdraw informed consent for your medical treatment; and authorize pain relief for you. Your agent can also admit you to a hospital or care facility. Among the most important decisions your agent can make for you are those involving your end-of-life care. This makes having a Healthcare Directive critical to inform and support the agent’s decisions.
Under the law, there are limits to your agent’s powers regarding certain mental health decisions. For instance, without a court order, your agent cannot voluntarily commit you for mental health treatment or consent to physically invasive mental health procedures or those that restrict your freedom of movement.
A valid Durable Power of Attorney for Healthcare must be in writing and signed by the principal in the presence of two witnesses or a notary public. Again, these witnesses must be “disinterested,” which means not related to you and not your care provider, with some exceptions.
Mental Health Advance Directive
If you are a person who has periodic major mental health issues or a dementia diagnosis, you might want to create a Mental Health Advance Directive or an Advance Directive for Dementia. These are specialized directives that allow you to approve or disapprove specific mental health treatments in advance or allow you to specify adjustments in your care and goals for gradually progressive loss of cognition.
Finally, the law in most states allows a portable physician’s order; in Washington, called a Physician’s Order for Life-Sustaining Treatment (POLST). This is another form of advance directive, primarily for use in indicating your care wishes if you have a medical event at home, where emergency personnel responds.
An elder law attorney can help you determine which types of advance directives suit your needs, or you might check these resources:
- The Conversation Project
- Alzheimer’s Association
- End of Life Washington
- Washington Law Help
- Dementia Legal Planning Toolkit
Getting your advance directives in place will help you plan ahead and let others know your wishes before the need arises.