Some health care providers, including Swedish Hospital, are presenting patients with Advance Directives, also known as Health Care Directives or Living Wills, for their consideration and signature.  A Health Care Directive (referred to herein as a “Directive”) is a document stating an individual’s wishes for his or her end-of-life health care.  For example, a Directive usually states whether an individual wants life support terminated if he or she is permanently unconscious.

While it is understandable and admirable that health care providers want to encourage patients to think about end-of-life health care, a hospital’s form Directive may conflict with or even revoke an individual’s carefully-considered estate planning documents.

Directives May Conflict with Existing Estate Planning Documents

A form Directive supplied by a health care provider, such as Swedish’s form Directive, may conflict with a patient’s Health Care Power of Attorney.  A Health Care Power of Attorney is an estate planning document, generally separate from a Directive, where an individual appoints an agent to make health care decisions of his or her behalf if he or she is unable to do so.

Swedish’s form Directive creates confusion and even a potential conflict with a patient’s Health Care Power of Attorney, even though the terms “agent” and “power of attorney” are not used in the document.  Swedish’s Directive requires patients to name a “health care representative,” who has powers similar to those granted to agents in most Health Care Powers of Attorney.  However, some of the powers in Swedish’s form Directive may conflict with the powers granted to a patient’s agent in his or her existing Health Care Power of Attorney.  If the documents conflict, whether in regard to the person named as a “health care representative” or “agent,” or the powers granted to such individual, it is unclear which document would control.  A later-signed Directive may even revoke a pre-existing Health Care Power of Attorney.  So, before signing a Directive from a health care provider, patients should confirm that the document does not revoke or conflict with an existing Power of Attorney.

Directives May Grant Excessive Discretion to Health Care Providers

Most people sign Directives because they want life-support treatment terminated if they are in an end-of-life state with no prospects of recovery, and they wish for their health care providers to abide by that request.  The entire goal of a Directive is to prevent end-of-life treatments which unnecessarily extend life.  A hospital form Directive is often overly deferential to health care providers, rather than a patient or a patient’s family, which could result in medical interventions the patient would not want if he or she were able to express his or her own preferences.

For example, Swedish’s form Directive requires patients to check one of several boxes regarding life support.   One box states the patient wishes his or her health care team to “try all life-support treatments that [the] doctors think might help.  If the treatments do not work and there is little hope of getting better, [the patient does] NOT want to stay on life-support machines.”  If a patient selects this option, he or she may believe that life support will be terminated in the event he or she is braindead without excessive interventions designed to prolong life, such as surgeries, intubation, and other invasive treatments.  However, this broad language gives health care providers broad authority to try all treatments that might help, which may result in countless unwanted procedures.  Not only does a provision like this give health care providers authority to try anything to keep a patient alive for an unspecified amount of time, it also grants all decision-making powers to a patient’s health care providers rather than his or her loved ones.

Before signing an Advance Directive, Health Care Directive, Health Care Power of Attorney, or other similar document provided by your health care provider, you should discuss the document with your attorney.  For more information regarding Advance Directives, Health Care Directives, Health Care Power of Attorneys, or estate planning, please contact Ryan L. Montgomery, Kara Kalenius Novak, or Kaitlyn K. Perez.