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What Does an Advance Directive Do?

MP900407501An advance directive or a living will is part of a complete estate plan. It’s not an easy document to talk about.  However, having it can make things far easier for you and loved ones during a difficult time.

A recent article from KRBK, “How to Create an Advance Directive in Oregon,” explains what an advance directive is, and how it works in the state of Oregon. It should be noted that the laws regarding this document, also known as an advance health care directive or a living will, are slightly different in different states. Work with an estate planning attorney to be sure you have the correct document for your state.

In serious or life-threatening medical situations, there are frequently many decisions to make, in a short period of time. An advance directive helps answer many of the medical questions when physicians are unable to ask patients how they want to be treated.

Advance directives in the state of Oregon require you to complete a form provided by the Oregon state government (or a close substitute) to create an advance directive.

There are four primary parts to this form, and you can limit the scope of the document to a certain period of time. Otherwise, it will be effective until either you revoke it in writing or you pass away.

The first section concerns the appointment of a health care representative, sometimes called a health care surrogate or a designated agent. By appointing an individual as your health care representative, you’re transferring decision-making power to her, in the event you cannot direct your own health care.

The second part is the health care instructions, which is close to a conventional living will. Here, you can specify any unique wishes you want your healthcare providers to honor, if you become incapacitated.

You also need to state, if you want life support and/or tube feeding in four different circumstances:

  • if you’re near death;
  • if you’re permanently unconscious;
  • if you have an advanced progressive illness; or
  • if you’re under extraordinary suffering.

You can say yes to any and all of these, or you can also choose to leave those specific judgments up to your doctor.

The form’s third section is for your witnesses to sign. To be binding, you’ll need two different witnesses to sign the document with you. They need to either see you sign the document or see you acknowledge that you signed. By signing, your witnesses are stating that you are who you say you are, and that you’re of sound mind and not under duress. When selecting your witnesses, you can’t choose the person you named as your health care representative, and you also can’t choose your doctor. One of your witnesses also can’t be a spouse or a blood relative.

The last section is for your health care representative and your alternate representative (if you want to name one). Your representative, by signing, is saying that she’ll act in good faith on your behalf and acknowledges that you can revoke the directive at any time.

Advance directives are also sometimes known as living wills. This can make things confusing, especially with living trusts and last wills. All three can have to do with end-of-life situations, but each is different.

A living trust transfers control of assets to a trustee. This is different from a will, because it happens while you’re still alive. The trustee manages the assets for you and can continue to do so after you die. If you create a revocable trust, you’ll be able to transfer assets in and out if you want; but an irrevocable trust doesn’t allow you to do that. You can also say if or when you want the trustee to dissolve the trust and transfer assets to your beneficiaries.

A will, or a last will and testament, outlines what you would like done with your assets after your death. After you die, an executor will carry out your wishes through a court process called probate.

Contrast this to a living will: it doesn’t have anything to do with your estates or your assets. A living will relates to the way in which you want to receive or not receive medical care, once you can no longer make those decisions for yourself.

Consider how you would feel if someone you loved was near death, decisions had to be made and no one had ever discussed what the person wanted. By having an advance care directive, and having a few conversations that might be uncomfortable, you can give your family the knowledge that they did what you would have wanted them to do. That is a gift from the heart.

Reference: KRBK (October 31, 2018) “How to Create an Advance Directive in Oregon”