Advance Directives

Your right to make health care decisions under the law in Tennessee

Introduction

Tennessee and federal law give every competent adult, 18 years or older, the right to make their own health care decisions, including the right to decide what medical care or treatment to accept, reject or discontinue. If you do not want to receive certain types of treatment or you wish to name someone to make health care decisions for you, you have the right to make these desires known to your doctor, hospital or other health care providers, and in general, have these rights respected. You also have the right to be told about the nature of your illness in terms that you can understand, the general nature of the proposed treatments, the risks of failing to undergo these treatments and any alternative treatments or procedures that may be available to you.

However, there may be times when you cannot make your wishes known to your doctor or other health care providers. For example, if you were taken to a hospital in a coma, you would want the hospital’s medical staff to know what your specific wishes are about the medical care that you want or do not want to receive.

This booklet describes what Tennessee and federal law have to say about your rights to inform your health care providers about medical care and treatment you want, or do not want, and about your right to select another person to make these decisions for you, if you are physically or mentally unable to make them yourself.

To make these difficult issues easier to understand, we have presented the information in the form of questions and answers. Because this is an important matter, we urge you to talk to your spouse, family, close friends, personal advisor, your doctor and your attorney before deciding whether or not you want an advance directive.

Questions and Answers

General information about advance directives

What are “Advance Directives”?

Advance directives are documents that state your choices about medical treatment or name someone to make decisions about your medical treatment, if you are unable to make these decisions or choices yourself. They are called “advance” directives, because they are signed in advance to let your doctor and other health care providers know your wishes concerning medical treatment. Through advance directives, you can make legally valid decisions about your future medical care.

Tennessee law recognizes 3 types of advance directives:

  1. Advance Care Plan-serves as a living will and is completed by an individual who is mentally competent for future health care decisions in which they may lack capacity to make such decisions about their health care

  2. Appointment of a Health Care Agent-serves as a form to be used by an individual who only wants to appoint a health care agent and not complete the additional information on the Advance Care Plan. The appointed agent will be able to make health care decisions for the individual if at any time they become incapacitated; and,

  3. Physician Order for Scope of Treatment (POST) – serves as a Universal Do Not Resuscitate (UDNR) and includes end of life treatment options to be discussed between physician and his/her patient. The UDNR is required to accompany all patients when transferred or discharged to other health care settings.

Do I have to have an Advance Directive?

No, it is entirely up to you whether you want to prepare any documents. But if questions arise about the kind of medical treatment that you want or do not want, advance directives may help to solve these important issues. Your doctor or any health care provider cannot require you to have an advance directive in order to receive care; nor can they prohibit you from having an advance directive. Moreover, under Tennessee law, no health care provider or insurer can charge different fees or rate depending on whether or not you have executed an advance directive.

What will happen if I do not make an Advance Directive?

You will receive medical care even if you do not have any advance directives. However, there is a greater chance that you will receive more treatment or more procedures than you may want.

If you cannot speak for yourself and you do not have any advance directives, your doctor or other health care providers will look to the following people in the order listed for decisions about your care: 1) Your spouse, unless you are legally separated; 2) Any of your adult children; 3) Either of your parents; 4) Any of your adult brothers or sisters; 5) Any of your other adult relatives; or 6) Any other adult who is familiar with your personal values and has exhibited special care and concern for you.

How do I know what treatment I want?

Your doctor must inform you about your medical condition and what different treatments can do for you. Many treatments have serious side effects. Your doctor must give you information, in language that you can understand, about serious problems that medical treatment is likely to cause. Often, more than one treatment might help you and different people might have different ideas on which is best. Your doctor can tell you the treatments that are available to you, but he cannot choose for you. That choice depends on what is important to you.

Whom should I talk to about Advance Directives?

Before writing down your instructions, you should talk to those people closest to you and who are concerned about your care and feelings. Discuss them with your family, your doctor, friends and other appropriate people, such as a member of your clergy or your lawyer. These are the people who will be involved with your health care, if you are unable to make your own decisions.

When do Advance Directives go into effect?

It is important to remember that these directives only take effect when you can no longer make your own health care decisions. As long as you are able to give “informed consent”, your health care providers will rely on YOU and NOT your advance directives.

What is “informed consent”?

Informed consent means that you are able to understand the nature, extent and probable consequences of proposed medical treatments and you are able to make rational evaluations of the risks and benefits of those treatments as compared with the risks and benefits of alternate procedures AND you are able to communicate that understanding in any way.

How will health care providers know if I have any Advance Directives?

All hospitals, nursing homes, home health agencies, HMOs and all other health care facilities that accept federal funds must ask if you have an advance directive, and if so, they must see that it is made part of your medical records.

Will my Advance Directives be followed?

Generally, yes, if they comply with Tennessee law. Federal law requires your health care providers to give you their written policies concerning advance directives. A summary statement of those policies is provided for you at the back of this book It may happen that your doctor or other health care provider cannot or will not follow your advance directives for moral, religious or professional reasons, even though they comply with Tennessee law. If it happens, they must immediately tell you. Then they must help you transfer to another doctor or facility that will do what you want.

Can I change my mind after I write an Advance Directive?

Yes, at any time, you can cancel or change any advance directive that you have written. To cancel your directive, simply destroy the original document and tell your family, friends, doctor and anyone else who has copies that you have cancelled them. To change your advance directives, simply write and date a new one. Again, give copies of your documents to all the appropriate parties, including your doctor.

Do I need a lawyer to help me make an Advance Directive?

A lawyer may be helpful and you might choose to discuss these matters with him, but there is no legal requirement in Tennessee to do so. You may use the forms that are provided in this booklet to execute your advance directives.

Will my Tennessee Advance Directives be honored in another state?

The laws on advance directives differ from state to state, so it is unclear whether a Tennessee advance directive will be valid in another state.
Because an advance directive is a clear expression of your wishes about medical care, it will influence that care no matter where you are admitted. However, if you plan to spend a great amount of time in another state, you should consider signing an advance directive that meets all the legal requirements of that state.

Will an Advance Directive from another state be honored Tennessee?

Yes. An advance directive executed in compliance with another state’s laws will be honored in Tennessee to the extent permitted by Tennessee law.

What should I do with my Advanced Directives?

You should keep them in a safe place where your family members can get to them. Do NOT keep the original copies in your safe deposit box. Give copies of these documents to as many of the following people as you are comfortable with: your spouse and other family members; your doctor; your lawyer; your clergyperson; and any local hospital or nursing home where you may be residing. Another idea is to keep a small wallet card in your purse or wallet which states that you have an advance directive and who should be contacted.

Advance Care Plan

What is an Advance Care Plan?

An Advance Care Plan serves as a living will and is completed by an individual who is mentally competent for future health care decisions in which they may lack capacity to make such decisions about their health care. It is a document that tells your doctor or other health care providers whether or not you want life-sustaining treatments or procedures administered to you if you are in a terminal condition or persistent vegetative state.

Is an “Advance Care Plan” the same as a “Will” or “Living Trust”?

No. Wills and living trust are financial documents that allow you to plan for the distribution of your financial assets and property after your death. An advance care plan only deals with medical issues while you are still living. Wills and living trusts are complex legal documents and you usually need legal advice to execute them. You do not need a lawyer to complete your Advance Care Plan.

It was formerly called a “Living Will”. This was a confusing term, so the name has been changed to an “Advance Care Plan”.

When does an Advance Care Plan go into effect?

An advance care plan goes into effect when: 1) your doctor has a copy of it, and 2) your doctor has concluded that you are no longer able to make your own health care decisions, and 3) your doctor has determined that you are in a terminal condition or persistent vegetative state.

What are “life-sustaining “ treatments?

These are treatments or procedures that are not expected to cure your terminal condition or make you better. They only prolong dying. Examples are mechanical respirators that help you breathe, kidney dialysis that clears your body of wastes, and cardiopulmonary resuscitation (CPR) that restores your heartbeat.

What is a “terminal” condition?

A terminal condition is defined as an incurable condition for which administration of medical treatment will only prolong the dying process and without administration of these treatments or procedures, death will occur in a relatively short period of time.

What is a “persistent vegetative state”?

A persistent vegetative state means that a patient is in a permanent coma or state of unconsciousness caused by illness, injury or disease. The patient is totally unaware of himself, his surroundings and environment, and to a reasonable degree of medical certainty, there can be no recovery.

Is an advance care plan the same as a “Do No Resuscitate (DNR)” order?

No. An advance care plan covers almost all types of life-sustaining treatments and procedures. A “Do Not Resuscitate” order is now called a Physician Orders for Scope of Treatment (POST). This has also been called a Universal Do Not Resuscitate (UDNR). This is a document prepared by your doctor at your direction and placed in your medical records. It is signed by the Physician and the patient, parent of a minor, or guardian. It states that if you suffer cardiac arrest (your heart stops beating) or respiratory arrest (you stop breathing), your health care providers are not to try to revive you by any means. It also covers medical interventions for the patient that has a pulse and/or is breathing. These include comfort measures, antibiotics, IV fluids and feeding tubes.

Will I receive medication for pain?

Unless you state otherwise in your advance care plan or UDNR, medication for pain will be provided where appropriate to make you comfortable and will not be discontinued.

Can my doctor be sued or prosecuted for carrying out the provisions of an advance care plan?

No. The Tennessee Right to Natural Death Act specifically states that no physician, health facility or health care provider acting under the direction of a physician, who participates in the withholding or withdrawal of medical care in accordance with the law shall be guilty of any civil or criminal act or of unprofessional conduct.

Does an Advance Care Plan affect insurance?

No. The making of an advance care plan, in accordance with Tennessee law, will not affect the sale or issuance of any life insurance policy, nor shall it invalidate or change the terms of any insurance policy. In addition, the removal of life-support systems according to Tennessee law, shall not, for any purpose, constitute suicide, homicide or euthanasia, nor shall it be deemed the cause of death for the purposes of insurance coverage.

Does an advance care plan have to be signed and witnessed?

Yes, you must sign (or have someone sign the document in your presence and at your direction, if you are unable to sign) and date the advance care plan. Then it must be witnessed by 2 qualified people or notarized.

The following people CANNOT witness your signature of the living will:

  1. Any person you may have appointed as your agent or alternate agent in you Appointment of a Health Care Agent (formerly a Durable Power of Attorney for Healthcare); or 2) Any person who is not yet 18 years of age.

In addition, at least one of the two witnesses must not be related to you by blood, marriage or adoption, and not entitled to any portion of your estate upon your death.

Appointment of a Health Care Agent

What is an Appointment of a Health Care Agent?

An Appointment of a Health Care Agent serves as a form to be used by an individual who only wants to appoint a health care agent and not complete the additional information on the Advance Care Plan. The appointed agent will be able to make health care decisions for the individual if at any time they become incapacitated. This was formerly called a Durable Power of Attorney for Health Care.

There is also a section on the Advance Care Plan that allows a person to be named as an agent or alternate agent to make health care decisions for the “principal”.

Who can I select to be my Agent?

You can appoint almost any adult to be your agent. You should select a person(s) knowledgeable about your wishes, values, religious beliefs, in whom you have trust and confidence, and who knows how you feel about health care. You should discuss the matter the person(s) you have chosen and make sure that they understand and agree to accept the responsibility.

You can select a member of your family, such as your spouse, child, brother or sister, or a close friend. If you select your spouse and then become divorced, the appointment of your spouse as your agent is revoked.

The following people CANNOT be appointed as your agent in the Appointment of a Health Care Agent:

1) Your treating health care provider; 2) An employee of your treating health care provider, unless he or she is related to you by blood, marriage or adoption; 3) An operator of a health care institution; 4) an employee of an operator of a health care institution, unless he or she is related to you by blood, marriage or adoption; or 5) a conservator, if one has been appointed by a court for you, except under conditions specified by Tennessee law.

When does the Appointment of Health Care Agent take effect?

The Appointment of Health Care Agent only becomes effective when you are temporarily or permanently unable to make your own health care decisions and your agent consents to start making those decisions. Your agent will begin making decisions after your doctors have decided that you are no longer able to make them. Remember, as long as you are able to make treatment decisions, you have the right to do so.

What decisions can my Agent make?

Unless you limit his/her authority in the Appointment of Health Care Agent, your agent will be able to make almost every treatment decision in accordance with accepted medical practice that you could make, if you were able to do so. If your wishes are not known or cannot be determined, the agent you appointed has the duty to act in your best interest in the performance of his or her duties. These decisions can include authorizing, refusing or withdrawing treatment, even if it means that you will die. As you can see, the appointment of an agent is a very serious decision on your part.

What happens if I regain the capacity to make my own decisions?

If your doctor determines that you have regained the capacity to make or to communicate4 health care decisions, then two things will happen:

  1. Your agent’s authority will end; and

  2. Your consent will be required for treatment.

If your doctor later determines that you no longer have the capacity to make or to communicate health care decisions, then your agent’s authority will be restored.

Can there be more than one Agent?

Yes. While you are not required to do so, you may designate alternates who may also act for you, if your primary agent is unavailable, unable or unwilling to act. Your alternates have the same decision-making powers as the primary agent.

Can my Agent be legally liable for decisions made on my behalf?

No. Your health care agent or your alternate agent cannot be held legally liable for treatment decisions made in good faith on your behalf. Also, he or she cannot be held liable for costs incurred for your care, just because he or she is your agent.

Can my agent resign?

Yes, your agent and your alternates can resign at any time by giving written notice to, your doctor or the hospital or nursing home where you are receiving care.

Does the Appointment of Health Care Agent have to be signed and witnessed?

Yes, you must sign (or have someone sign the Appointment of Health Care Agent form in your presence and at your direction, if you are unable to sign) and date it. Then it must be witnessed by 2 qualified people or notarized.

The following people CANNOT witness your signature on the Appointment of Health Care Agent form: 1) Any person you may have appointed as your agent or alternate agent; or 2) Any person who is not yet 18 years of age.

In addition, at least one of the two witnesses must not be related to you by blood, marriage or adoption, and is not entitled to any portion of your estate upon your death.

PHYSICIAN ORDER FOR SCOPE OF TREATMENT (POST)

What is a POST?

A Physician Order for Scope of Treatment (POST) serves as a Universal Do Not Resuscitate (UDNR) and includes end of life treatment options to be discussed between physician and his/her patient. The UDNR is required to accompany all patients when transferred or discharged to other health care settings.

This a Physician Order Sheet based on the medical conditions and wishes of the person identified as the patient. It is divided into sections with boxes to be checked.

SECTION A deals with Cardiopulmonary Resuscitation (CPR): the patient has no pulse and/or is not breathing.

SECTION B deals with Medical Interventions when the patient has a pulse and/or is breathing.

SECTION C deals with antibiotics—treatment for new medical conditions.

SECTION D deals with medically administered fluids and nutrition.

This form must be signed by the Physician as well as the patient, parent of a minor, or a guardian.