7 Questions about Advance Directives

What is an Advance Directive?

An Advance Directive (known in Georgia as an Advance Directive for Healthcare) is a document regarding healthcare decision making. This document is sometimes referred to as a Living Will or a Healthcare Power of Attorney (HPOA). Today’s Advance Directive combines those two documents into a single form, which is the document that doctors and hospitals in Georgia are used to seeing.

In Georgia, the Advance Directive for Healthcare has two parts. The first part is where you select your healthcare agents. These are the people who will be making medical decisions for you if you are not able to do so yourself. The second part has to do with your treatment preferences and other personal decision-making. In this section, you document your preference for the kinds of treatment you would want if you were in a state where you were unable to express your choice later on. In this section you will also have the opportunity to state whether or not your healthcare agent will have the power to donate your organs or to donate your body to a medical study program, and select your preference between burial versus cremation, among other things.

Why is an Advance Directive such an important part of an estate plan?

This document allows you to articulate preferences that could mean the difference between life and death (and quality of life and quality of death) if you become incapacitated and can’t make those decisions known at a later time.

When some people think about estate planning, they think deciding what happens to their stuff when they die. That’s an important part of any estate plan, but it’s not the only part. The Advance Directive for Healthcare and the Financial Power of Attorney come into play when you're still living but you're incapacitated. The Advance Directive states who will make healthcare decisions for you when you can’t make them yourself, and it’s vital that these decision-makers understand your preferences. The Advance Directive enables you to both choose the decision-makers and to articulate your preferences for them in advance of any incapacity.

What are the legal consequences for a person who becomes incapacitated without an Advance Directive?

The consequences are significant, and it’s your family who will pay the price.

Without an Advance Directive, you won’t be able to choose who gets to make healthcare decisions on your behalf when you can’t make them yourself. You may prefer that your spouse, a certain child, or someone else you trust calls the shots, but unless you have the Advance Directive naming them, there’s no guarantee. Nor will you have the ability to choose who will serve as their backups.

If you don’t have an Advance Directive, you won’t have any say in what decisions you would want to be made if you were in a state of permanent unconsciousness. What kind of treatment would you want? Would you want your body to be kept artificially alive for a few days, a few weeks, or longer? Without an Advance Directive, you won’t have any say in these things. While it’s always a good idea to talk with your family about your preferences, it’s an even better idea to complete your Advance Directive so there’s no guessing or arguing about what you would have wanted.

If you are incapacitated and you don’t have an Advance Directive, your family will have to go through an expensive, lengthy, and time consuming guardianship process to be able to make these decisions for you. Yes, that means your family will have to go to court!

Ultimately, it comes down to control. If you don’t have an Advance Directive, you lose control. Strangers could be the ones calling the shots about your care, your treatment, or whether you live or die. Few people want that.

Why do so many people put off creating an Advance Directive?

Sickness, incapacity, death, and dying are tough topics to discuss. Almost no one likes talking about or even thinking about these things, even though they are a natural part of life. Sickness will come to most of us, and death will come to all of us, so it’s important to have these discussions.

Many people put off the conversations because they think they have plenty of time. It may seem too soon until it's too late. Another reason for delay involves ambivalence. Some people don’t want to commit to a position about an agent or treatment preferences because they think they might change their minds in the future. It’s very hard to make a decision about care in the future when you can't imagine what that might be like.

It's also common for people, as they age, to be more or less willing to undergo treatments that they may have rejected when they were younger and healthier. Some people put off making decisions because they are worried they might feel differently at a later date about the kind of care they want. To them, creating an Advance Directive feels like being locked in to a decision that they may regret later.

Concerns about foregoing cardiopulmonary resuscitation can be an obstacle to creating and Advance Directive. People are afraid that if their Advance Directive includes a statement that they would not want CPR in certain situations, they won’t get the care that they want when they need it.

What are the personal consequences of not having an Advance Directive?

Many people don’t stop to think about the very real personal consequences of not having an Advance Directive. If you don’t document your decisions, they can’t really be followed. What does this mean in practice?

It means that you could be put on life support when you don’t want to be. You could end up with a feeding tube, a ventilator, or other life sustaining treatment that you don’t want, and it could be very difficult or impossible to get those treatments stopped. You could end up prolonging your life without having any quality of life.

Your family will be forced to watch you go through this, knowing that they don’t have any legal power to make the decisions you wanted. Or, they may disagree about what should be done. Conflicts are common in the absence of an Advance Directive. Some families never recover.

The greatest gift you can give your children is an Advance Directive for Healthcare.

What are some of the other hardships that the family might face?

Even the most loving and close-knit families experience stress if they have to make difficult decisions about a loved one’s treatment or care. Families are often changed forever because of the conversations that occurred around end-of-life decisions.

Another hardship can occur during an emergency medical event. Imagine that you just had a stroke and you’re admitted to the hospital. You can’t speak, you’re paralyzed, and you will likely die without life support. You don’t have an Advance Directive—you thought you had plenty of time. You’ve always known in your heart that you didn’t want to be kept alive by machines, but you didn’t share your sentiments with anyone.

Now, unfortunately, it’s too late. The hospital staff tries to contact your children, but no one answers the phone. What do these trained medical professionals do? They do whatever it takes to keep you alive, even though being on life support is your worst nightmare. It’s also possible that if the hospital staff reaches your child and asks him or her to make the decision to end life support, your child could refuse to make that decision. We’ve seen this happen. In cases like this, the hospital steps in and keeps you alive.

An Advance Directive can spare you and your family all this needless drama. Once you’ve created it, the key is to make sure that it gets in the right hands at the right time. This might involve taking it to your local hospital to keep on file, giving it to your doctor, or making sure that your child/healthcare agent can access it on his or her phone.

When you come to Kimbrough Law for an Advance Directive, what can you expect?

You can expect compassionate and caring guidance through these hard conversations. It can really help when someone who’s not in the family facilitates these discussions. You can expect the staff to listen to your needs. We’ve had cases where the client, often a parent, will express their preference to forego certain kinds of treatment—and the kids object. Our attorneys are skilled at managing these conversations and making sure that the client’s wishes are the ones that are ultimately respected and documented. Everyone who participates in these conversations can expect to walk away with greater understanding of Advance Directives, the powers they convey, and how they work.

At Kimbrough Law, we consider the whole person and the whole dynamics of the family during these discussions. We may be creating a document, but there is a person represented in that document. Our goal is to make sure everybody understands what the client wants. When the time comes, the decision-making process is much easier.

For more information about Advance Directives or to schedule a consultation, contact Kimbrough Law at 760.850.6910.