Understanding the Advance Medical Directive

by Jessica A. Hayes, Esq.

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An Advance Medical Directive is an integral part of your estate plan, but it is often the most misunderstood.  You may have heard the terms “Living Will” and “Medical Power of Attorney” used interchangeably with “Advance Medical Directive.”  But how do they all fit together?

Your Advance Medical Directive (AMD) allows you to provide written directions to your medical providers in the event you become unable to make your own medical decisions.  It typically consists of a “Living Will” section, in which you direct the types of end-of-life treatment you would want in the event that you could no longer make those decisions yourself, and a “Medical Power of Attorney” section, in which you name an agent who could make other basic medical decisions for you in the event that you were no longer able to do so yourself.

For many of our clients, the Living Will portion of an Advance Medical Directive lists situations in which the individual would not want extraordinary measures (e.g., artificial respiration, feeding tubes, hydration) to be taken, including when the individual has been diagnosed with a terminal condition from which he or she does not have a reasonable chance of recovering.  Others direct that in such a situation, life-prolonging procedures should continue to be utilized for as long as possible, and still others direct that life-prolonging procedures continue for only a specified amount of time, after which if there has been no improvement in their condition, those procedures should be withheld.  These decisions are highly personal in nature, and this section should be carefully tailored to accurately reflect your wishes.

The Medical Power of Attorney section allows you to name an agent to make all other medical decisions for you, in the event that you cannot.  Under Virginia law, except for a few limited circumstances, the determination that you are unable to make medical decisions must be made by your attending physician and another licensed physician or clinical psychologist.  Once you have been deemed incapable of making your own medical decisions, your agent may make just about any medical decision you could have made for yourself, so long as they do not contradict your wishes about end-of-life treatment as set forth in the Living Will section.  You can name a single individual or a group of individuals (either unanimously or by majority vote) to serve in this capacity.  We strongly recommend that you name at least one successor agent, to serve in the event that the preceding agent becomes unable to serve.

Before speaking with your attorney about this document, in addition to the considerations discussed above, you should also consider the following:

  • Do you consider feeding tubes (nutrition) and hydration to be “life-prolonging procedures” that you would want withheld or withdrawn in the event you had no reasonable chance of recovering?
  • Do you want to authorize your agent to make a gift of any of your organs or tissues (or to donate your body to science)?
  • Do you have any medical conditions for which you know you would like a certain type of treatment administered or withheld?
  • Do you have religious beliefs which dictate that certain medical procedures be avoided?
  • Do you want to compensate the agent you have named for serving on your behalf?

As you can see, creating an Advance Medical Directive involves making decisions that are highly personal in nature and that will vary from individual to individual.  Although it’s easy to find a form Advance Medical Directive online or at your local hospital, these “fill in the blank” types of documents often fail to address the options adequately and are easily misunderstood.  As with all estate planning documents, we recommend that you seek the assistance of an experienced estate planning attorney in creating an Advance Medical Directive.

Kit Kat

Ask Kit Kat: Eagles at the Airport

Hook Law Center: Kit Kat, what can you tell us about a pair of bald eagles at Norfolk International Airport?

Kit Kat: Well, there used to be a pair of eagles at the Norfolk airport. However, they have been “encouraged” to relocate to Lake Whitehurst in Norfolk. I say “encouraged” because it took 2 years of persuasion for them to move. They loved their home in the Norfolk Botanical Garden with its lovely pond and foliage. However, it also was dangerous there for them, because it brought them really close to the flight path of major jets coming in and out of the airport. One eagle had already been killed by a jet 3 years ago.

So how was this accomplished? Well, Dad Norfolk and The Missus, as the pair are named, were you could say “gently harassed” by shots from paintball guns which make loud noises, among other tactics. As they built a nest, personnel would take it away, hoping to entice them to move. Also, this past April, the airport assigned a firefighter to keep the birds off the runways. Eventually, the 2-year process was successful, and the pair re-built a nest along the shores of Lake Whitehurst.

Not everyone is pleased about the way in which the eagles were forced to move. The Eagle On Alliance had started a lawsuit against the federal government because of the methods the US Dept. of Agriculture and airport officials were using to encourage the eagles to relocate. The suit has now been dropped in view of the fact that the airport has hired a person full-time to keep birds off the runways. The Alliance’s position was that the eagles could remain at the Botanical Garden, but should be kept away from the airport runways. So far, the eagles seem to be adjusting well to their new home. We’ll have to wait until spring and see whether or not they feel confident enough to mate. (Tim Eberly, “Nice Move,” The Virginian-Pilot, January 22, 2015)

Upcoming Seminars and Events

  • February 7, 2015 – Shannon Laymon-Pecoraro will be speaking to the Down Syndrome Association of Hampton Roads’ Baby Play Group.
  • February 10, 2015 – Andrew Hook will be teaching a continuing legal education seminar to personal injury attorneys on “Protecting Your Client’s Settlement Using Trusts.”
  • February 20-21, 2015 – Andrew Hook will be speaking on Managing a Small Law Firm at the 2015 VAELA UnProgram in Charlottesville, VA.
  • February 23, 2015 – Andrew Hook and Shannon Laymon-Pecoraro will be speaking on the ABLE Act to a local financial advisory firm.
  • February 24 and 27, 2015 – Hook Law Center is announcing the HLC Monthly Seminar Series beginning this month with Tax Return Tips for Seniors and Their Families.  The seminar is scheduled at 10 a.m. on Tuesday, February 24, 2015 in HLC’s Harbour View office, 5806 Harbour View Blvd, Suffolk, VA OR 10 a.m., Friday, February 27, 2015 in HLC’s Virginia Beach office, 295 Bendix Road, Virginia Beach, VA.  Space is limited!!! To reserve your seat,  please call 757-399-7506 and ask for Debbie.
  • August 12, 2015 – Andrew Hook will be speaking to a group at Maryview Hospital in Portsmouth, Virginia.
  • August 21, 2015 – Andrew Hook will be speaking to a group at DePaul Hospital in Norfolk, Virginia.
  • August 27, 2015 – Andrew Hook will be speaking to a group at Mary Immaculate Hospital in Newport News, Virginia.

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