As medical science catches up to caring for both mind and body in equal measures, the law is firmly set in evaluating the two parts separately. As such even if you can physically sign, if you are mentally unfit or ‘lack capacity’ you will lack standing to make legal decisions. It also means that many of our legal solutions are limited in addressing circumstances where you have mentally declined but are still physically able.

Making your Powers of Attorney ‘Durable’ will prevent many problems if you begin to experience mental health problems, including dementia. A ‘durable’ power of attorney means that the powers vested in the document endure regardless of your mental state, until your death. This means that if you become mentally incapable of making financial, health, or other decisions for yourself your power of attorney can make them for you and make arrangements on your behalf.

An advanced health care directive can help direct your medical treatment but would not place anyone in control of the finances to make sure those treatments are paid for. In a case where there is no durable power of attorney for finances or health in place and an individual becomes mentally incapacitated, a guardianship proceeding would need to be filed. Although these can be filed on an emergency basis they do take some time to make it through our court system and can result in a delay in treatment, or in cases such as Alzheimer’s or dementia where the diagnosis can be sudden or delayed based on the rate of symptoms being developed, a guardianship could be delayed if a physician feels that the individual is still capable of making their own decisions on a day to day basis. A guardianship can be over an individual, the individual’s estate (i.e. their finances), or both.

Advanced Health directives only apply when the individual does not have capacity to speak for themselves. Individuals fail to have capacity in a few circumstances, when they are unconscious, under the influence of medications or alcohol, for some other reason physically unable to communicate, or when they are mentally unable to connect with the reality of who, what, when, and where. If you have capacity and are able to speak for yourself, you are able to make your own medical decisions in the moment and your family and physicians will not need to rely on your advance directives to speak for you.

If you are terminally ill and conscious and have capacity to make medical decisions you may;
Seek a discharge to die at home.
Be able to make a written request under the death with dignity act.
Make medical decisions that are not aligned with your medical directive.
Revoke your medical directive.

If you are terminally ill and unconscious, or do not have capacity to make medical decisions your power or attorney, and Advance health directive will direct your medical care and you cannot;
Seek a discharge to die at home.
Make a written request under the death with dignity act.

Both of these circumstances require written authorization from the patient, while competent, and terminally ill.

A standard advanced health care directive is usually based off of RCW 70.122.030 which only directs your medical care in two circumstances, 1) you are terminally ill and unable to speak for yourself, or 2) you are in a permanent unconscious state. In both these circumstances a medical professional must determine that you will not be able to recover from your condition before following the instructions in your advanced medical directive. This is because at that stage the individual is going to inevitably die from their condition, and can be considered legally dead. In a conscious, if unaware, state of poor health with the inability to connect with reality but not terminally ill, and is conscious the Natural Death Act and a standard AHCD would not apply.

In 2009 Washington passed the death with dignity law that allowed individuals with terminal illness to request self-administered medication to assist in suicide. However in order for this to legally apply to a patient’s circumstance the patient must be competent and able to give themselves the medication. The Advanced Health directive also cannot provide advanced written requests for euthanasia. You can also direct that your advance directive not be enforceable under certain circumstances such as If you have been diagnosed as pregnant that would allow your physician and power of attorney to follow best medical advice as opposed to a prewritten directive.

Although there is only so much we can set out in an AHCD that is legally enforceable you there are other non-legislative form options that might assist in measuring life in quality rather than quantity. These are primarily administrative forms developed by the hospitals and become physician orders when officiated, and thus have some authority to effect patient’s medical treatment. The most common one of these is the Physician Orders for Life Sustaining Treatment form (POLST). The POLST form is ‘portable’ physician order form that describes the patients’ medical code directions, translating an individual’s wishes in regards to life sustaining treatment that are identified in other documents including a Health Care Directive or Health Care Power of Attorney. As a POLST form is a physician order rather than a legal document, in order to be valid it must be signed by your treating physician, as well as yourself or your healthcare representative. However it is possible that the physician will not want to sign a preemptive medical order with no current ongoing serious medical injury or illness as it becomes effective to all treatments specified regardless of event that causes the need for treatment. However, once such an illness or injury has taken effect either you, if able, or your legal representative can sign it and the POLST will be recognized if it is clear it is in line with your advance directive or documented wishes. You may also choose to write a letter or separate document to prove your wishes for a POLST under specific circumstances no included in your directive.

If you have questions or concerns about advanced health care directives or estate planning, call Limitless Law PLLC at (360) 685-0145 or use the “Ask an Attorney” link on our website to contact us today!

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