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  • Writer's pictureAnderson Cullen

Planning for Medical Complications

People prefer not to think about end-of-life medical decisions, hoping to delay the weight of these considerations into old age. In many cases, this postponement presents few issues, as individuals have the capacity to navigate their health concerns as they grow older. However, accidents and illnesses can sometimes occur suddenly, catching their victims unprepared for their complications. These possibilities make advance directives a useful tool for medical planning.

What is an Advance Directive?

An advance directive is a written document in which a person can make certain medical decisions in advance in case the person later becomes terminally ill or permanently unconscious. The person can choose whether to receive life-sustaining treatment, such as the use of a ventilator or dialysis, or artificial food and hydration through a tube or IV in the event that these interventions would serve only to prolong the dying process or state of permanent unconsciousness. The person may also select someone else, known as a health care proxy, to make these decisions if the person becomes terminally ill or permanently unconscious.

Requirements of an Advance Directive

In order to create a valid advance directive, several requirements must be met. First, the person creating the advance directive, the declarant, must 1) be at least 19 years old and 2) be of sound mind. Then, the advance directive itself must be 1) in writing, 2) signed by the declarant or by someone the declarant expressly directs to sign it while in the declarant’s presence, 3) dated, and 4) signed by at least two witnesses. The witnesses must be at least 19 years old and cannot be 1) a person directed to sign the advance directive on behalf of the declarant, 2) the health care proxy, 3) a relative of the declarant, 4) someone who may inherit from the declarant by a will or the state laws applicable when there is no will, or 5) someone financially responsible for the declarant’s medical care.

When Does an Advance Directive Become Effective?

An advance directive only becomes effective in specific circumstances. First, the declarant’s attending physician must determine that the declarant is no longer able to understand, appreciate, and direct the declarant’s medical treatment. Second, two physicians, one of whom is the attending physician and the other of whom is qualified and experienced to make the relevant diagnosis, must examine the declarant, diagnosis the declarant with a terminal illness or injury or state of permanent unconsciousness, and document the diagnosis in the declarant’s medical record. When both of these requirements are met, a validly created advance directive becomes effective.

However, if a declarant’s attending physician knows that the declarant is pregnant, the advance directive will not be effective during the course of the pregnancy.

How Does Someone Use an Advance Directive?

After someone has created an advance directive, it is the individual’s responsibility to provide the person’s health care providers with a copy of it. The providers will then include the document in the individual’s medical records.

In some cases, a health care provider may refuse to follow provisions of a valid advance directive. However, in these cases, the refusing health care provider must promptly notify the individual and anyone authorized to act on the individual’s behalf of the provider’s refusal and permit the individual to be transferred to another health care provider. The refusing provider must also reasonably cooperate in helping the individual transfer to a health care provider willing to follow the advance directive.

If you are interested in creating an advance directive or would like more information, contact Anderson Cullen at (469) 559-8657 or to set up a consultation. Every situation is different, and no strategy works in every case. Together, we can figure out the right approach for your situation.

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