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   Advance Health Care Directives
   (aka a Living Will or Durable Health Care Power of Attorney)

* This article and the forms below are not intended, nor should they be construed in any way, to replace or supplement the advice or guidance of legal counsel and are provided purely for informational purposes only. Information provided herein may become stale due to new developments in the law in your area.


    This article covers, the following:
     
  1. Introduction - What is an Advance Health Care Directive?  
  2. Do I need a lawyer to complete an Advance Health Care Directive?  
  3. How long is my Advance Health Care Directive good for?  
  4. Is my Advance Health Care Directive valid in another state?  
  5. What should I do with my Advance Health Care Directive once I have completed it?  
  6. Can I revoke my Advance Health Care Directive?  
  7. What is a Health Care Agent?  
  8. How much authority will my designated Health Care Agent have?  
  9. Will my designated Health Care Agent be liable for my medical bills?  
  10. Can I change my Advance Health Care Directive or designate a new Health Care Agent?  
  11. Witness requirements, restrictions, and governing statutes.
  12. Find an Advance Health Care Directive form for your individual state.


What is an Advance Health Care Directive?

     An Advance Health Care Directive, sometimes referred to as a "Living Will", is a written document declaring the type and extent of medical care you desire in the event that you become incapacitated. An Advance Health Care Directive is the best way to make your medical and health care wishes known and to insure that those wishes are followed, including directions regarding the use of life-prolonging equipment and procedures. By completing an Advance Health Care Directive form, the law, in essence, allows you to have a say regarding your medical care wishes when you are otherwise not able to speak and make the same known. Without an Advance Health Care Directive, your family may act on their own accord rather than yours, i.e., you may not want to prolong your life if it means being completely incapacitated and kept alive by means of a respirator, etc. Your doctors are required to follow the written instructions contained in your Advance Health Care Directive. Likewise, any person that may be designated as your Health Care Agent or "proxy" is also required to follow your written instructions.

Do I need a lawyer to complete an Advance Health Care Directive?

     A lawyer is not required to help you complete your Advance Health Care Directive form. It is a fairly simple form that can be completed by just about anyone. However, you should seek the advice of an attorney and have a Will prepared if your intent is to provide for your personal property, finances, and the care of your children. If you have already had an attorney draft a Will for you, you should send a copy of your Advance Health Care Directive to them so that they will have a copy on file.

How long is my Advance Health Care Directive good for?

     Your Advance Health Care Directive is valid forever, unless it contains a predetermined expiration date or it is specifically revoked by you in writing. Your Advance Care Directive should be reviewed from time-to-time to insure it accurately reflects your current wishes.

Is my Advance Health Care Directive valid in another state?

     An Advance Health Care Directive that meets the requirements of your home state may not meet the requirements of other states. However, most states will recognize a properly completed Advance Health Care Directive that is legally executed in another state. If you have a dual residency or spend a lot of time in another state, you may wish to consider having your Advance Health Care Directive meet the laws of both states to the extent possible.

What should I do with my Advance Health Care Directive once I have completed it?

     You should make sure that your Advance Health Care Directive has been properly signed, dated, and preferrably notarized and witnessed by two adults, each of whom should NOT be a person who is also designated as your Health Care Agent, if any is appointed, to avoid an appearance of coersion. Keep the original with the rest of your important papers and in a location where your family can find it in case of an emergency. Safe deposit boxes are NOT a good place to keep your Advance Health Care Directive because your family will not have access to the box without a court order, which may take time to obtain. If someone else has authorized access to your safe deposit box, you may placed a copy of your Advance Health Care Directive in your box together with a note of where the original may be found. You may also register it online with the U.S. Living Will Registry, so that family members may have easy access to it.

     Give copies of your completed Advance Health Care Directive form to your family, your doctors, health care providers, your appointed Health Care Agent, if any is appointed, and anyone else who is likely to be called if you experience a medical emergency. You should instruct these people to present a copy of the form to any hospital, health care provider, or medical personnel upon demand.

     If you anticipate surgery or hospitalization, you should bring a copy of your Advance Health Care Directive with and give it the hospital admittance personnel. A copy of your Advance Health Care Directive, rather than the original, may be relied upon by your doctors in most instances.

     Before you begin giving your Advance Health Care Directive to your family, doctors and others, as mentioned above, you should first create a list of people who you intend on giving it to, including their addresses and telephone numbers. Attach this list to the original for safe keeping. Should you ever decide to change or revoke your Advance Health Care Directive, you will need to know who you gave previous directives to so not to cause confusion in a time of need or in case of an emergency. Anyone who subsequently receives your Advance Health Care Directive should be added to your list.

Can I revoke my Advance Health Care Directive?

     You are free to revoke your Advance Health Care Directive at any time. To revoke the entire form, including the appointment of any Health Care Agent, you must inform both your doctor and health care provider so that they are fully aware of your decision. You should do this, in writing, as soon as possible after revoking your Advance Health Care Directive. You should also send notice of your decision to everyone on the list you created of people who have received a copy of your Advance Health Care Directive.

What is a Health Care Agent?

     A Health Care Agent is someone that you can appoint to act on your behalf to see that your Advance Health Care Directive is made known to your doctors and health care providers, and more importantly the Health Care Agent is the person who is entrusted to see that your health care instructions are followed. Appointing someone as your Health Care Agent has the same effect as giving them a limited Power of Attorney over your medical affairs (sometimes referred to as a "Durable Health Care Power of Attorney." The term "durable" means that your designated Health Care Agent will have power to act even if you become disabled). Many states do not require that you appoint a Health Care Agent. If a Health Care Agent is required or recommended in your home state, the forms below will contain such the terminology to effect such an appointment. Anyone over the age of 18, who is not your doctor or health care provider, may be appointed as your Health Care Agent. You can choose a family member such as your spouse or an adult child, a close friend, or someone else you trust. You can also appoint one or more "alternate agents" in the event that the person you selected as your primary Health Care Agent is unavailable or unwilling to make a decision. You should talk to the people you plan to appoint as your Health Care Agent to insure that they understand your medical and health care wishes, and agree to accept this responsibility. Your Health Care Agent is immune from liability so long as he or she acts in good faith. This is sometimes an important consideration for Health Care Agents who are not related to you.

How much authority will my designated Health Care Agent have?

     If you become incapacitated and are unable to make your own health care decisions, your designated Health Care Agent will have the legal authority to speak for you regarding your health care matters. Doctors and other health care professionals will look to your Health Care Agent for decisions rather than your next of kin or any other person. Your Health Care Agent will be able to accept or refuse medical treatment on your behalf, have access to all of your medical records, as well as make decisions about donating your organs, authorizing an autopsy, and disposing of your body in the event of your death.

     If you do not want your Health Care Agent to make certain decisions or have certain powers, you can limit their authority in your Advance Health Care Directive form. By law, your Health Care Agent cannot authorize convulsive treatment, i.e., electroconvulsive therapy or ECT, psychosurgery, sterilization, abortion, or placement in a mental health treatment facility. Your Health Care Agent has no authority to act on your behalf or to make decisions for you until such time as you become incapacitated and are unable to make those decisions yourself. However, you can allow your Health Care Agent to make those decisions for you immediately if you so choose. This would need to be specifically requested in your Advance Health Care Directive.

     When you become incapacitated, your Health Care Agent is required to make decisions that are consistent with any instructions you have set forth in your Advance Health Care Directive form. They are free to dismiss demands and recommendations made by family members, friends, and even your doctor. If you have not made your wishes known, your Health Care Agent will be left to decide what is in your best interest.

Will my designated Health Care Agent be liable for my medical bills?

     Your designated Health Care Agent is not responsible for your medical bills unless that person would otherwise be responsible for your debts, i.e., your spouse, your guardian, etc. An Advance Health Care Directive deals only with medical decisions relating to your health care and has no effect on the financial responsibility for the same. However, unless you have made other arrangements such as with a Will and how your expenses are to be paid, your Health Care Agent could become responsible for the disposition of your body, and the costs associated therewith, in the event of your death. This is because companies cannot contract with deceased individuals.

Can I change my Advance Health Care Directive or designate a new Agent?

     You can complete a new Advance Health Care Directive at any time. By doing so, all previous Advance Health Care Directives made by you will be deemed to have been revoked. You also need to inform your family, doctors, health care providers, and anyone else on your list who received a copy of your previous Advance Health Care Directive so that they are fully aware of your new directive. You should do this as soon as possible after creating any new Advance Health Care Directive. You should consider reviewing your Advance Health Care Directive upon divorce or the death of your spouse, or upon other events where anyone mentioned in your Advance Health Care Directive becomes estranged from you or incapacitated themselves.

Witness Requirements, Restrictions and Governing Statutes

     The specific terms used to describe a person's health care directive varies from state to state. Some states refer to it as a Health Care Proxy and others refer to it as a Durable Power of Attorney for Health Care, and still some states use a joint document containing both a Living Will and a health care directive. The name variations are many. Because the witness requirements also vary from state to state and document to document, i.e., one witness may be required for a Living Will but two required for a healthcare proxy, the guideline below uses the maximum number of witnesses needed so as to err on the side of caution. To avoid any possible conflicts, all witnesses should be adults, not a relation by blood, marriage or adoption, not your doctor or healthcare provider, and not the person to whom the directive designates as the person responsible for your healthcare if you become incapacitated.

State Witness Requirements and Restrictions Governing Statutes

Alabama Two witnesses who are at least 19 years of age, neither of whom are related to the principal, an heir or healthcare provider. Invaild if pregnant. AC § 22-8A-4
Alaska Two witnesses who are personally known by the principal OR notarized. AS § 13.52.010
Arizona One witness AND notarized. ARS § 36-3201
Arkansas Two witnesses. Invaild if pregnant. AC § 20-17-202
California Two witnesses OR notarized. Invalid if pregnant. Probate Code § 4700
Colorado Two witnesses. Invalid if pregnant. CRS § 15-14-506
Connecticut Two or more witnesses. Invalid if pregnant. CS § 19a-575
Delaware Two or more adult witnesses. DC § 2503
District of Columbia Two or more adult witnesses. DC ST § 7-622
Florida Two witnesses, one of whom is neither a spouse nor a blood relative of the principal. FS § 765.302
Georgia Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider. Invaild if pregnant. GC § 31-32-3
Hawaii Two witnesses OR notarized. HRS § 327E-3
Idaho Two witnesses. Invalid if pregnant. IC § 39-4510
Illinois Two witnesses who are at least 18 years of age. Invalid if pregnant. 755 ILCS 35/3
Indiana Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider. Invalid if pregnant. IC § 16-36-4-8
Iowa Two witnesses, one of which cannot be a relation. Invalid if pregnant. IC § 144A.3
Kansas Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider, OR notarized. KS § 58-629
Kentucky Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider, OR notarized. Invaid if pregnant. KRS § 311.625
Louisiana Two witnesses. LA RS § 40:1299.58.3
Maine Two witnesses. Probate Code § 5-802
Maryland Two witnesses, neither of which can be the designated health care agent. MC § 5-602
Massachusets Two adult witnesses. MGL § 201D-2
Michigan Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider MCL § 700.5506
Minnesota Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider, OR notarized. MS § 145B.03
Mississippi Two witnesses, one of whom cannot be related to the principal, an heir or healthcare provider, and neither can be the designated agent. MS § 41-41-205
Missouri Two adult witnesses. MRS § 459.015
Montana Two witnesses. MCA § 50-9-103
Nebraska Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider. NS § 30-3405
Nevada Two witnesses. NRS § 449.600
New Hampshire Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider. NH RSA § 137-H:4
New Jersey Two witnesses or before an attorney or notarized. NJPS § 26:2H-56
New Mexico No witnesses required (although recommended). NMS § 24-7A-2
New York Two witnesses. NYCL § 29C-2981
North Carolina Two witnesses, neither of whom are related to the principal, an heir or healthcare provider. NCGS § 90-321
North Dakota Two witnesses or notarized. NDCC § 23-06.5-05
Ohio Two adult witnesses, neither of whom are related to the principal, an heir, healthcare provider, or designated agent. ORC § 1337.12
Oklahoma Two adult witnesses, neither of whom are related to the principal or an heir. OS § 3101.4
Oregon Two adult witnesses, one of whom cannot be related to the principal, an heir, or healthcare provider. ORS § 127.515
Pennsylvania Two adult witnesses. 20 Pa.C.S. § 5404
Rhode Island Two adult witnesses, neither of whom are related to the principal. RIC § 23-4.11-3
South Carolina Two witnesses, neither of whom are related to the principal, an heir or healthcare provider AND notarized. SCC § 44-77-40
South Dakota Two adult witnesses. SDC § 34-12D-2
Tennessee Two witnesses, neither of whom are related to the principal, an heir or healthcare provider. TC § 32-11-104
Texas Two adult witnesses, one of whom cannot be related to the principal, an heir, or healthcare provider. TS § 166.003
Utah Two witnesses, neither of whom are related to the principal, an heir or healthcare provider. Invalid if pregnant. UC § 75-2-1104
Vermont Two adult witnesses. VS § 9703
Virginia Two witnesses. VC § 54.1-2983
Washington Two witnesses, neither of whom are related to the principal, an heir or healthcare provider. Invalid if pregnant. RCW § 70.122.030
West Virginia Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider AND notarized. WVC § 16-30-4
Wisconsin Two adult witnesses, neither of whom are related to the principal, an heir or healthcare provider. WS § 155.10
Wyoming Two witnesses OR notarized. WS § 35-22-403


Advance Health Care Directive Forms by State

AK AL AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS KY
LA MA MD ME MI MN MO MS MT NC ND NE NV NH NJ NM NY
OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY

    Some states do not require anyone to witness you signing your health care directive, while other states require two witnesses and a notary (see Witness Requirements above). Your interests are best served by having two people, who are not a party to your health care directive, witness your signing of the document as well as having the document notarized. By doing so, you eliminate any future allegations of forgery. Many banks, law firms, and insurance companies have notaries on hand as well as many people who are more than willing to witness you sign your directive.

    Some of the forms found here require Adobe's Acrobat Reader in order to view. You may download the free .pdf viewer here.

    * These forms are not intended, nor should they be construed in any way, to replace or supplement the advice or guidance of legal counsel and are provided purely for informational purposes only. Information provided herein may become stale due to new developments in the law in your area.







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