If ever you are unable to voice your instructions concerning your medical treatment — the care you want to receive, and when you want and do not want to receive it — your Advance Directives will do your talking for you.
Below: Important Tips | Health Care Power of Attorney | Mental Health Power of Attorney | General Power of Attorney | Living Will | "Do Not Resuscitate" (DNR) | What Happens in the Absence of Advance Directives
“Advance directives” are a group of legal documents, prepared in advance of the time they are needed, through which you express your wishes regarding medical treatment, and you detail who will make decisions on your behalf when you are unable to do so yourself.
If you are incapacitated and cannot communicate your care instructions directly, advance directives are your voice to doctors and caregivers and to the trusted persons whom you have appointed to act on your behalf.
Your advance directives include:
- three power of attorney (POA) documents: a durable health care POA, a mental health care POA, and a durable general/financial POA;
- a living will; and
- a pre-hospital medical directive, or “Do Not Resuscitate” (DNR) directive.
IMPORTANT TIPS
It is never too early to prepare your advance directives.
- Every adult, regardless of age or health status, should prepare advance directives.
- Tomorrow is never certain, and advance directives ease the burden on your loved ones in the event you become incapacitated due to an accident, health condition, or other cause.
Have the conversation.
- Communication is the most important step in advance health care planning.
- Talk about your wishes with the people who may be called upon to speak or decide for you.
- It will be easier for everyone to respect your wishes when they are confident that they understand what your wishes are.
- It can lessen the pain on your loved ones when they must make difficult decisions on your behalf.
Carefully select your agent and a back-up agent. Select someone who:
- is willing and available to act and speak on your behalf;
- understands you and your values; and
- can be a strong advocate and can handle conflicting opinions among family, friends, and healthcare providers.
The mere diagnosis of a condition, such as dementia, does not render a person incapable of executing advance directives.
- The following text describes specific capacity requirements for each type of advance directive.
- A person may be competent much of the time but decompensate when off her medication or in response to other triggers.
- What matters is whether you meet the capacity requirements at the time you sign the advance directive.
Review and revise your advance directives when any of these events occur:
- You or your named agent receive a new health diagnosis or experience a decline in health.
- The person you named as an agent is no longer available, due to death, divorce, or a change in that person’s circumstances, or that person has expressed an unwillingness to serve.
- Your wishes change, or you think a different agent might be better suited to act on your behalf.
- Five years have passed since you reviewed your advance directives.
Make sure your advance directives can be easily found when needed.
- Give a copy to your providers and those who you named to act on your behalf.
- Do not put them in a safe deposit box, unless you are sure that your agent or some other trusted person has access to it.
- You may want to consider storing them in the Arizona Secretary of State’s Registry for Advance Directives.
Seek advice.
- If you are unsure about how to draft, revoke, or amend any of your advance directives, seek the advice of an attorney or other qualified professional.
- Discuss your wishes regarding future medical treatment and end-of-life preferences with your doctor to better understand your options and the implications of your decisions.
HEALTH CARE POWER OF ATTORNEY
A Health Care Power of Attorney (HCPOA) is a document in which you appoint someone who will make or communicate your medical, mental health, and end-of-life decisions when you are not able to do so yourself.
Drafting Requirements
A Health Care Power of Attorney must meet certain legal requirements:
- It must contain language that clearly indicates that you intend to create an HCPOA.
- It must be dated and signed or marked by you. (If you are physically unable to sign or mark an HCPOA, the notary or witness shall verify on the document that you indicated to the notary or witness that the POA expresses your wishes and that you intend to adopt the POA at that time.)
- Your signature or mark must be notarized or witnessed in writing by at least one adult who affirms that you are over age 18 and appeared to be of sound mind and acting of your own free will at the time you executed the HCPOA.
- The notary or witness shall not be the agent named in your POA or anyone providing health care to you and shall not be related to you by blood, marriage, or adoption.
Legal Capacity to Draft an HCPOA
You have legal capacity to draft a Health Care Power of Attorney if:
- you have not been declared incapacitated by a court; and
- at the time of executing the POA, you are of sound mind.
Being of “sound mind” means that you:
- understand the effect of the document;
- are able to select an agent of your own choosing; and
- understand that you are granting authority to your named agent to act on your behalf.
Authorizations and Duties of Your Agent
Under authority of an HCPOA, your agent may make medical and mental health care decisions on your behalf, such as selecting a course of treatment, admitting you to an assisted living or memory care facility, or withdrawing life-sustaining treatment. However, those decisions must follow an order of priorities:
Following Expressed Wishes. The decisions contained in your Health Care Directive are given first priority. Your agent and physicians will be guided or controlled by medical treatment decisions that you made before you became incapacitated.
Using Substituted Judgment. If a particular treatment decision is not addressed in your Health Care Directive, your agent will make decisions based on what he or she believes you would choose. If your choices are unknown, your agent will decide based on what he or she knows about your values and wishes.
Using Good Faith to Decide Best Interests. If your agent does not know your decisions, preferences or values, then he or she must decide in good faith what would be in your best interests, considering (a) relief from suffering, (b) whether functioning will be preserved or restored, and (c) the quality and extent of sustained life.
Will Healthcare Providers Honor My HCPOA?
A healthcare provider must comply with health care decisions made by your agent unless those decisions conflict with a health care directive that had previously been given to the provider.
A healthcare provider who makes good-faith health care decisions in reliance on an apparently genuine health care directive, or the direction of an agent, is immune from liability and professional discipline for that reliance.
Although an HCPOA grants an agent authority to make all mental health decisions for the principal except for admission to an inpatient psychiatric facility, some providers mistakenly require a mental health care power of attorney for all mental health-related decisions, including administration of medication and admission into a locked memory care unit.
Therefore, you should complete a mental health power of attorney at the same time you complete your HCPOA to avoid unnecessary delay or roadblocks in obtaining treatment. Additionally, you may specify in your HCPOA what types of mental health care decisions your agent may make on your behalf.
Revocation
Your may revoke a health care directive or disqualify your agent by:
- orally notifying both your agent and the healthcare provider;
- preparing a written revocation or statement to disqualify your agent;
- making a new health care directive; or
- any act demonstrating an intent to revoke the directive or disqualify your agent.
MENTAL HEALTH CARE POWER OF ATTORNEY
A Mental Health Care Power of Attorney (MHPOA) is a document that gives your agent the authority to consent to your admission to an inpatient psychiatric facility.
An “inpatient psychiatric facility” is defined as either (a) a hospital that contains an organized psychiatric services unit, or (b) a special hospital that is licensed to provide psychiatric services. A secure assisted living facility or locked memory care unit is not covered by this definition, so your agent does not need this authority to admit you to that type of facility.
Drafting Requirements
A Mental Health Care Power of Attorney must meet the following legal requirements:
- It must contain language that clearly indicates that you intend to create an MHPOA.
- It must be dated and signed or marked by you. (If you are physically unable to sign or mark an MHPOA, the notary or witness shall verify on the document that you indicated to the notary or witness that the POA expresses your wishes and that you intend to adopt the POA at that time.)
- Your signature or mark must be notarized or witnessed in writing by at least one adult who affirms that you appeared to be of sound mind and acting of your own free will at the time you executed the MHPOA.
- The notary or witness shall not be the agent named in your POA or anyone providing health care to you and shall not be related to you by blood, marriage, or adoption.
Legal Capacity to Draft an MHPOA
The capacity required to draft an MHPOA is the same as that required for a health care power of attorney, except that there is one additional requirement for MHPOAs: a person must not be “incapable” as defined by Arizona law.
Under Arizona law (A.R.S. § 36-3281(D)), a person is “incapable” if, in the opinion of a licensed neurologist, psychiatrist or psychologist, the person lacks the capacity to give informed consent. Therefore, if a person is unable to make a voluntary decision regarding treatment after being presented with all the facts necessary to make a decision, then that person might lack the capacity needed to execute an MHPOA.
Authorizations and Duties of Agent
An MHPOA provides authority to an agent to consent to admit the principal to an inpatient psychiatric facility if such authority is expressly stated in the MHPOA. If there is no MHPOA, an agent with an HCPOA may make decisions about mental health treatment, except those decisions regarding admission to an inpatient psychiatric facility.
Will Providers Accept My MHPOA?
Mental health providers should accept your agent’s consent as valid consent to admit you to an inpatient psychiatric facility, as long as you clearly granted that authority to your agent in your MHPOA. Mental health providers often misunderstand the scope and authority of POAs. Although a Health Care Power of Attorney is sufficient for all mental health care decisions, except admission to an inpatient psychiatric facility, you should have both an MHPOA and an HCPOA.
See also: “Mental Health Power of Attorney and Guardianship: Efficacy and Barriers“
Revocation of an MHPOA
A principal may not revoke an MHPOA if found “incapable,” as described above. If the principal is not found “incapable,” the principal may revoke an MHPOA in the same manner as an HCPOA.
GENERAL POWER OF ATTORNEY (FINANCIAL & PROPERTY)
A General Power of Attorney (also known as a “Financial Power of Attorney”) is a document that allows you to give legal authority to someone else to manage your finances, assets, or property on your behalf.
A General POA grants broad authority to your agent to manage your finances, assets, and property. Under certain circumstances, you may execute a limited POA, which grants authority to your agent to act on your behalf for a specific purpose, such as managing a specific account or signing a specific document.
A General POA can take effect immediately, meaning that both you and your agent can act in parallel. Or, it can be “springing,” which means that it does not take effect until you have been determined to lack capacity, as defined in the document itself.
Some financial institutions and government agencies require that their own forms be used, and others will only honor documents with certain language. Before your agent tries to act on your behalf in dealing with your bank or any other entity, you should check with each entity to confirm that they will accept your POA or whether they will require you to complete an alternate form.
General POAs are not considered one of the Advance Directives, and, because of the many variables inherent in these documents, they are beyond the scope of this Guide. For more information on General POAs and to download blank forms and instructions, visit the Superior Court website.
LIVING WILL
A Living Will is a written statement that contains instructions intended to guide or control the health care treatment decisions that can be made on your behalf by your agent or healthcare providers.
Drafting Requirements
There are no specific drafting requirements for your Living Will if it is signed and attached to your HCPOA.
If your Living Will is not part of your HCPOA, you must follow the same drafting requirements prescribed for an HCPOA.
Legal Capacity to Draft a Living Will
You have legal capacity to draft a Living Will if you:
- have not been declared incapacitated by a court;
- understand the nature and consequences of the health care instructions in your Living Will; and
- are able to communicate your instructions, whether orally, in writing, or through gestures.
Duties of Your Agent or Healthcare Providers
A Living Will does not authorize your agent or providers to do anything specific. Rather, it imposes a duty on anyone making health care decisions on your behalf to abide or be guided by the wishes you expressed in your Living Will.
A healthcare provider must comply with health care decisions made by your agent unless those decisions are inconsistent with a health care directive, including a Living Will, that you have given to your provider.
In other words, your agent and your providers have a duty, first and foremost, to follow the wishes you expressed when you had capacity to make those wishes and preferences known.
Will Healthcare Providers Honor My Living Will?
You should provide a copy of your Living Will to your healthcare providers in addition to the agent you named in your HCPOA.
Arizona law provides that, if an adult patient is unable to make or communicate health care treatment decisions, a healthcare provider shall make a reasonable effort to locate and follow a health care directive and to consult with an agent, guardian, or surrogate under the surrogacy statute.
PRE-HOSPITAL MEDICAL DIRECTIVE – DO NOT RESUSCITATE (DNR)
A DNR directive — also known by first responders as an “Orange Form” because it is required by law to be printed on orange paper— is a document that, in the event of cardiac or respiratory arrest, directs first responders, emergency medical system personnel, hospital emergency department personnel, and direct-care staff persons to withhold cardio¬pulmonary resuscitation (CPR), electric shock to the heart, artificial breathing devices or other invasive procedures to resuscitate you.
If you are a patient admitted in a hospital, your DNR will be inserted into your medical chart.
If you have a DNR directive and reside at home, you should keep the DNR directive where any first responders can see it immediately upon entering your home.
CONSEQUENCES: WHAT HAPPENS IN THE ABSENCE OF ADVANCE DIRECTIVES
The Court-Appointment of a Guardian Might Be Required
While guardianships are sometimes appropriate and in a person’s best interests, the proceedings can be both emotionally and financially draining and should be avoided when possible. One of the most effective ways to avoid guardianships is to plan ahead for possible future incapacity by executing advance directives.
The person for whom a guardian is appointed is known as a ward.
A guardian of an incapacitated person has the same powers, rights and duties respecting the guardian’s ward that a parent has respecting the parent’s minor child, including the ability to direct the ward’s health care.
Special authorization is required for guardians regarding the ward’s admission to and treatment in inpatient psychiatric facilities.
Consequences of Guardianships
While the purpose of a guardianship is to protect the ward’s interests, it can hold important consequences for the ward.
In addition to the expense and emotional stress of court proceedings, the appointment of a guardian (a) requires a finding of incapacity (see below) and (b) limits the ward’s civil rights.
Incapacity. Arizona law defines an “incapacitated person” as an adult who is unable to make or communicate responsible decisions concerning himself or herself due to mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause.
A finding that a person is incapacitated and in need of a guardian is not a medical decision; it is a legal decision made by a court after considering various types of evidence. Determining incapacity can be difficult on the proposed ward because that person may have to hear testimony from loved ones about what they can and cannot do for themselves, which can be embarrassing or feel hurtful.
You May Be Required to Undergo Court-Ordered Treatment
You have a right to be mentally ill and refuse treatment — until your illness presents a danger to yourself or others or renders you incapable of caring for yourself.
Under those circumstances, if you are not willing or able to consent to treatment, you may be ordered by a court to undergo involuntary treatment.
The legal process for court-ordered treatment can feel degrading and frightening. You may be detained in a facility until you are evaluated, and you might hear testimony about the events that led up to the petition for court-ordered treatment, potentially causing you to relive traumatic events.
Sometimes a properly executed HCPOA or MHPOA can prevent the need for a court-ordered treatment because your named agent will have the authority to consent to treatment on your behalf.
The Surrogacy Statute: Arizona Law Might Determine Who Will Make Decisions on Your Behalf
Arizona’s “surrogacy statute” (A.R.S. § 36-3231) provides that, if an adult patient is unable to make health care decisions and has no HCPOA or court-appointed guardian, the healthcare provider must make reasonable efforts to contact the following individuals, in the order indicated, who are available and willing to serve, have the authority to make decisions for the patient, and will follow the patient’s wishes, if known:
- The patient’s spouse, unless the patient and spouse are legally separated.
- An adult child of the patient. If the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonably available for consultation.
- A parent of the patient.
- The patient’s domestic partner, if the patient is unmarried.
- A brother or sister of the patient.
- A close friend of the patient.