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WHAT IS AN ADVANCE MEDICAL DIRECTIVE AND WHY DO I NEED ONE?

By Faisal Moghul of Fox & Moghul posted in estate planning on Friday, August 7, 2020.

Purpose of an Advance Medical Directive

The primary purpose of an Advance Medical Directive (“AMD”), also called a Living Will, is to provide instructions to your doctors and family as to how you wish to be cared for if you are no longer able to communicate your wishes. If you are hospitalized and being kept alive by artificial means, you have the choice to determine the level of care to be performed. You also have the choice of the person that will make choices for you and ensure your wishes are honored (“Patient Advocate”). The Patient Advocate should be a person whom you trust and believe will hold your best interests in mind when making determinations required by the AMD.

Life Sustaining Treatment (“LST”)

Life Sustaining Treatment includes drugs, machines, or medical procedures that would keep you alive but would not cure you.

You will determine if you want LST or not and who will make final decisions for you.

No Life Sustaining Treatment

If you do not want LST, you can provide the specific situations in which such treatment would be withheld. These conditions include if you are in an irreversible coma or persistent vegetative state, or if you are terminally ill and life sustaining procedures would only serve to artificially delay your death or if your medical condition is such that the burdens of treatment outweigh the expected benefits.

You may also indicate that your Patient Advocate should consider if it is time to relieve you of suffering, the expenses involved in continued LST, and the quality of life if prolonged.

Life Sustaining Treatment Options

In the event you wish to receive LST only if you are in a coma or persistent vegetative state you can indicate if you will be provided LST unless and until your physician has reasonably concluded that you will remain unconscious for the rest of your life, in which case the LST will be withheld.

You may also direct that you wish your life to be prolonged to the greatest extent possible consistent with sound medical practice without regard to my condition, my chances or expectations for recovery, or the cost of the procedures.

Variation of Forms and Requirement

While standard AMD forms are available in different forms, it is important to realize that your hospital or doctors may have a form they prefer, along with ‘do not resuscitate’ orders. If you are ill and know the hospital where you will be treated, you are advised to contact the Hospital or your physician to ensure that the form you use will be acceptable to the Hospital.

Alternative, the Virginia statutes provide a suggested form of written advance directives in VA. Code in § 54.1-2984.

Execution

The requirements for execution of an AMD in Virginia is codified in Va. Code § 54.1-2981 to § 54.1-2993.1. These requirements require that it be notarized with two witnesses. The witnesses will execute a statement that you executed the document in their presence, and you were of sound mind, under no duress, fraud or undue influence. The minimal requirements for a witness is defined in Va. Code § 54.1-2982 which states that a witness is any person over the age of 18, including a spouse or blood relative of the declarant. Employees of health care facilities and physician’s offices, who act in good faith, shall be permitted to serve as witnesses for purposes of this article.

However, it is advisable to place more stringent requirements to ensure enforceability without legal challenges. It is suggested that a witness not be a spouse, parent, child, grandchild or sibling, not the presumptive heir and to the best of his/her knowledge, not a beneficiary to your will. A witness also should not be the Agent, the physician or an employee of the life or health insurance provided for you. Nor should they be an employee of the health care facility or home for the aged where the you reside or are being treated.

Revocation

The AMD may be revoked at any time as long as you are capable of understanding the nature and consequences of your actions (i) by a signed, dated writing; (ii) by physical cancellation or destruction of the advance directive by the declarant or another in his presence and at his direction; or (iii) by oral expression of intent to revoke (Va. Code §54.1-2985). If you have registered the AMD with the Advance Health Care Directive Registry pursuant to Article 9 (§ 54.1-2994 et seq.) any revocation of such directive must also be notarized before being submitted to the Department of Health for removal from the registry. However, failure to notify the Department of Health of the revocation of a document filed with the registry shall not affect the validity of the revocation, as long as it meets the requirements listed above (Va Code §54.1-2985).

As always, your Virginia Real Estate Lawyers at Fox & Moghul stand ready to assist you. If you are interested in discussing an AMD please call us to discuss your needs and intentions.

Fox & Moghul - Real Estate

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