ADVANCE DIRECTIVES

Copyright 1996

Fleming & Curti, P.L.C., Attorneys at Law

Robert B. Fleming & Thomas A. Curti

330 N. Granada Ave., Tucson, AZ 85701

(520) 622-0400

fleming@elder-law.com
http://www.elder-law.com

Introduction

All adults have the fundamental right to control their own medical care, including the decision to employ or terminate artificial, extraordinary or heroic treatments which only prolong the process of dying.  This right is normally exercised by competent patients giving (or withholding) consent for treatment when requested by their physicians or the facility in which they are receiving care.

Unfortunately, many patients are no longer able to make health care decisions directly.  Arizona law now recognizes three distinct types of documents which can be executed in advance to provide a mechanism for health care decision making when the patient no longer is able to make the decisions directly:

Health Care Powers of Attorney

Sometimes also called Durable Powers of Attorney for Health Care, these instruments permit each individual to name another person (or persons) who will have the power to make health care decisions at any time when the patient is not able to do so directly.  In order to be effective in Arizona, a health care power of attorney must contain clear language indicating that it is to be used for such purposes, and must be witnessed (or notarized) in accordance with specific statutory requirements.  Many powers of attorney found a stationery stores, discount supply houses and bookstores do not meet those requirements.  No particular form is required for health care powers of attorney, so long as the minimum requirements have been met.

Living Wills

Any document which expresses the wishes of the patient may become a Living Will if it is properly witnessed.  As with health care powers of attorney, no particular form is mandated by the law; the form previously authorized by the legislature continues to be a valid living will.  Living wills may give guidance to the agent operating under a health care power of attorney, or may absolutely control the agent.  A living will can be executed even though no health care power has been given.

Prehospital Medical Care Directives (Orange Forms)

These new (and very specialized) documents were created by the legislature to deal specifically with the problem of paramedics having to resuscitate patients in virtually every circumstance.  Now, a patient who does not wish to be resuscitated (or whose guardian or health care agent does not wish resuscitation) may execute this directive to paramedics and emergency room physicians, which should prevent the administration of CPR, defibrillation or the insertion of tubes.  The directive must be in the form authorized by the legislation, must be on orange paper and must be signed by a health care professional.  Most people, after considering the options, will probably not execute prehospital medical care directives.

General Information

In order to make preparation and execution of advance directives easier, the legislature has provided a form for completion.  The legislative form is not the only form which may be used, but is is one available choice.  Not all sections of the legislative form must be completed to make the document effective.  Note, for instance, that the form permits you to make your wishes known regarding autopsy and organ donation; the health care power and/or the living will can be executed whether or not those sections are completed.

While you may use the legislative form for your health care power and/or living will, you are not required to do so.  The law recognizes your right to make a more individualized statement of your wishes, or to modify the standard form in any way you wish.  Some people, for instance, would not want to have food and fluids withheld in any circumstances.  Others may wish to make a stronger statement about pain medications, directing the use of adequate pain killers even though death may be hastened.  Feel free to customize the directive to your individual wishes; if you make changes directly on the form, you should initial those changes to show that they are part of your directive.

Executing an advance directive cannot affect the right to obtain or recover from insurance policies, pensions or other benefits.  You may not be required to execute an advance directive as a condition of entering any hospital, nursing home or other care facility.

The completed directive should be treated as any other important legal document.  It is important that copies be given to physicians, family members and friends, but care should be taken that the original of the document is readily available.

Witnesses to the directive should not be related by blood or marriage, entitled to receive anything from your estate or pursuant to your will, or directly involved in providing health care to you.  If any such persons are used as witnesses, it is absolutely imperative that there be at least two witnesses to the directive.

Compassion & Choices Arizona provides an excellent quality state-of-the-art Advance Directives package.

Arizona Advance Directive Registry - Register your advance directives online with the Arizona Secretary of State. Note that you cannot upload them, you must mail in paper copies. There is no charge for this service.

Click here to read the Arizona law