It generally is desirable for an individual to make special arrangements for the type of medical treatment he or she will receive in the event he or she becomes incapacitated and is, therefore, unable to express his or her desires at that time. These special arrangements can take several different forms, including the following:
Health Care Power of Attorney:
By executing a Health Care Power of Attorney (or a “Medical” Power of Attorney) which deals specifically with medical decisions, a Principal may designate another to act as his or her Agent for purposes such as gaining access to medical records and “confidential medical information”; employing and discharging medical care providers; giving or withholding consent to particular treatments, authorizations, or medical procedures including “no code” or DNR (“Do Not Resuscitate”) and honoring particular spiritual or religious preferences.
“Living Will” Declaration:
Since 1985, Arizona has authorized the execution and enforcement of “Living Will” Declarations under which a person may direct the withholding or withdrawal of life-sustaining procedures if the person is in a “terminal” condition. The person must execute the “Living Will” Declaration in the presence of two “disinterested” witnesses. The person must notify his or her physician of the existence of the Declaration, and the physician must then include the Declaration in the person’s medical records. The Declaration is binding upon health care providers, health care institutions, Guardians of the person, etc.; and it also provides them with immunity from liability if they comply with the Declaration. The Declaration may be revoked by the person at any time – without regard to the person’s mental state or incapacity – by cancellation, defacement, obliteration, burning, tearing, or other means of destruction. It can also be revoked by a written revocation or a “verbal expression” of intent to revoke.
Prehospital Medical Care Directive:
A person (the “Patient”) may execute a prehospital medical care directive to provide that, in the event of cardiac or respiratory arrest, the Patient directs the withholding of cardiopulmonary resuscitation by emergency medical system personnel, hospital emergency department personnel, and direct care staff persons. The prehospital medical care directive must be printed on an orange background in a prescribed form, which must be signed by the Patient, a licensed health care provider, and a witness. A Patient often will prepare a prehospital medical care directive and keep it at his or her home (and/or in his or her wallet or purse) so that emergency medical system personnel might become aware of the Patient’s wishes at the time of a medical emergency.
Burial/Cremation Instructions:
Under Arizona law, there is a statutory “duty” to bury the body or provide for other funeral and disposition arrangements for a dead person. That duty falls to a surviving spouse, if any; otherwise, to the Agent under the decedent’s most recent Health Care Power of Attorney if that Power of Attorney specifically gives that person such authority; otherwise, to certain other relatives of the decedent. Furthermore, if the person with that duty is aware of the decedent’s wishes regarding the disposition of his or her remains, that person is required to comply with those wishes “if they are reasonable and do not impose an economic or emotional hardship.” Therefore, many people will prepare a letter of instructions setting forth their wishes regarding their funeral/memorial service, burial/cremation, etc., so that the person with that duty will be aware of those wishes at a time when those arrangements are being made.
Mental Health Care Power of Attorney:
Although, as a general rule, an Agent under a Health Care Power of Attorney may make mental health care decisions on behalf of the Principal (if the Principal is incapable of making those decisions), sometimes a Principal may prefer to create a separate power of attorney to designate an Agent to make mental health care decisions on behalf of the Principal. This is particularly true if the Principal has a history of mental health problems and the Principal wants to be sure that an appropriate person (who may not be the same person named in the Principal’s Health Care Power of Attorney) is making mental health decisions on behalf of the Principal. In addition, if the Principal (with a history of mental health problems) wants to be sure that the Agent has the legal authority to admit the Principal to an inpatient psychiatric facility, this needs to be expressly stated in either the Principal’s Health Care Power of Attorney or Mental Health Care Power of Attorney.