An advance healthcare directive lays out your wishes and provides instructions for your healthcare providers to follow when you are no longer able to speak for yourself regarding your medical care. A directive may be written or spoken but it is much better to prepare an advanced healthcare directive in writing to make sure your desires are reflected accurately and to avoid confusion and misunderstandings down the road. The directive can include instructions concerning your medical care, healthcare providers and treatment facilities, as well as your wishes when it comes to end of life decisions, organ donations and funeral arrangements.
Under Maine law, a written directive must be signed by you and witnessed by two competent adults. These signatures must be made in each other’s presence and not by electronic means*. An agent cannot be one of the witnesses. Additionally, it is good practice to have your directive witnessed by a notary public; again, this must be done in the presence of all parties and not by electronic means. Prior to executing your directive, a talk with the person or persons you have chosen to be your agents is a good idea. This way you will be able to confirm they are willing to take on this responsibility as well as to convey your wishes to them. After you have properly executed your directive, you should give a copy to all your healthcare providers. If you know you are going to a facility for treatment, provide that facility with a copy also. You can keep the original in a safe place and make copies to give out to those providers—a copy is as good as the original.
A directive gives you the ability to have a say over your healthcare decisions even when you are unable to communicate those decisions yourself. If you become incapacitated, your agent must make decisions in accordance with the instructions you spelled out in the directive and with the wishes you made known to your agent. An important item of note about advance healthcare directives is, unless stated differently in the directive itself, the directive only comes into play when you are unable to convey your wishes to your providers. You do not give up your rights to make your own healthcare decisions as long as you are able to do so. An advance healthcare directive can be revoked or changed at any time as long as you are still competent.
An advance healthcare directive can also take the burden off your loved ones who would otherwise have to make those difficult decisions themselves. During these hard times, they will know they are carrying out your wishes. Additionally, a directive can be very useful when family members disagree on your medical care. A valid directive lessens the chance a disagreement ends up in court pitting those family members against each other in a costly and potential lengthy battle.
Without a valid advance healthcare directive in place, decisions about your care could be made that are the exact opposite of what you may have wanted. It may be your desire to not be kept alive by artificial means if you have an irreversible condition, but without a directive in place, that just might happen. The opposite is also a distinct possibility.
An advance healthcare directive is a vital piece to everyone’s estate plan. The attorneys at Maine Center for Elder Law, a Practice of Perkin Thompson, are available to assist with drafting and executing this important document. We can be reached at (207) 467-3301 or (207) 774-2635.
* 18-C MRS §5-803 (2)—Notwithstanding any law validating electronic or digital signatures, signatures of the principal and witnesses must be made in person and not by electronic means.
