Managing your final illness and appointing a health care representative to speak on your behalf is important, and can be done through a properly drafted and signed legal document. In Oregon, these documents are known as the Advance Directive and Appointment of Health Care Representative.
The Health Care Representative
Under both the advance directive and appointment of health care representative forms, you can appoint someone called a health care representative
to make your health care decisions if you are unable to make them yourself. This health care representative can only make your healthcare decisions if you become incapable of making them yourself. Your health care representative must accept the nomination before the nomination is active. You must sign the advance directive and have it notarized or witnessed by two qualified witnesses. To be “qualified” a witness must be an adult who is not your attending physician, your attending health care provider, your health care representative or your alternate health care representative.
The Advance Directive
In addition to appointing a health care representative, the advance directive allows you to state your preferences regarding life support and tube feeding under certain circumstances. These circumstances are listed in the advance directive form and include: you are close to death and life support would only postpone, not prevent, death; you are permanently unconscious; you are in the end stages of an advanced progressive illness; or life support would not help your medical condition and would subject you to extraordinary suffering. You may use the checklist on the form and may also include a written narrative of your preferences for end-of-life care.
Who can serve as a health care representative?
Your health care representative can be any person you want, so long as they are an adult and are willing to serve as your representative and follow your stated preferences. People who cannot serve as your health care representative include your attending physician and their employees, the employees of a care facility (unless that person agreed to act on your behalf before he or she became employed at the facility). The form must include the health care representative’s contact information including their address, phone number(s), and email.
What are the duties of the health care representative?
The health care representative must attempt in good faith to follow your wishes as expressed in your advance directive. Once your representative agrees to serve, he or she cannot ignore the duty to do so. The only way the representative can avoid this duty is to resign altogether from serving as your representative. You should list one or two alternate representatives in case your first choice is unable to serve or resigns.
The health care representative cannot overrule your decision to a change of care even if it conflicts with your advance directive — regardless of whether you remain legally capable of making that decision. The representative does, however, have the power to allow you to be admitted to a hospital for up to 18 days in order to get treatment for dangerous behavior that is caused by dementia, even if you object.
Who can witness an advance directive?
One witness can be related to you by blood, marriage or adoption. The other cannot, and that person also should not expect to inherit anything under the terms of your will or have any claim against your estate. That witness cannot be an owner, operator or employee of a health care facility where you are a patient or resident. And neither the health care representative, nor an alternate health care representative, can serve. You may not use your attending physician as a witness.
How long is an advance directive or health care appointment valid?
The document is effective from the date you sign it before a notary or two valid witnesses, and stays in effect until you die or revoke the document.
How can it be revoked?
You can revoke your end-of-life decisions at any time, regardless of your mental state or competency. Other matters may be revoked at any time so long as you are capable of making medical decisions. If you revoke the document, you can start it again or make a new one only by doing so in writing. You must be mentally competent to execute a new document.
Who can make an advance directive?
Any capable person over the age of 18 may make an advance directive at any time. Someone under18 can make an advance directive if the person is either legally emancipated or married.
May I draft my own forms?
Oregon law states that an advance directive and appointment of health care representative must be in a certain form. If you want your document to be valid, you must use the correct form. All health care organizations, including home health agencies, hospice programs, hospitals, long-term care facilities and health maintenance organizations have the forms and will provide them to you. You may find the form online but make sure it is the current form as outlined in the Oregon Revised Statutes and not an older version. A lawyer can prepare the form and help answer questions or concerns as you complete the form.
Some people make mistakes on their forms that may prevent the document from being legally binding. Even though forms with mistakes cannot necessarily be enforced, courts look at them as having expressed a person’s wishes and desires, and should allow them to be honored if they are sufficiently clear and there is no reason to doubt the person’s capacity to express those wishes at the time the form was signed.
Isn’t an advance directive the same as mercy killing?
No. Nothing in the statute condones, authorizes, or approves mercy killing or permits a deliberate act to end life. Instead, the advance directive permits the natural process of dying as provided by the laws if your preference is for no life support or no tube feeding. You express your choices; your health care representative must follow your wishes when you are incapable. Someone who actively ends your life may be guilty of a crime.
Won’t physicians be afraid to get involved with advance directives?
Designated health care representatives, health care providers and health care facilities who act in good faith and in accordance with the law are immune from criminal and civil liability.
Can insurance companies require policy holders to sign advance directives in order to get or retain medical insurance?
No. The advance directive does not affect the terms of any life or health insurance policies.
If there is no advance directive or appointment of health care representative, who will make end-of-life care decisions?
If an incapable person has no advance directive or health care representative, the attending physician can withdraw life support at the request of the following people: a guardian who is authorized to make health care decisions; a spouse; a majority of the adult children who can be located; either parent; a majority of the adult siblings of the principal who can be located with reasonable effort; or any adult relative or adult friend, or person nominated by any of the above named people. If none of these people are available, life-support may be withdrawn by the attending physician or attending health care provider. A duly authorized health care representative may make the decision to withdraw life-support only after consulting with family and close friends.
Legal editor: Meredith L. Williamson, August 2019