Advance medical directives: the part of planning that concerns the person, not the property
Estate planning usually deals with what happens to property after death. Advance medical directives deal with the period before it, while the person is still here and can no longer say what they want.
"Without a document, the family has to reconstruct what the person would have wanted, and they sometimes disagree. With a document, the question shifts from deciding to identifying."
Adv. and Notary Igal Mor
What advance medical directives are
Advance medical directives are a document in which a person sets out in advance how they are to be treated medically in a future situation where they can no longer express their wishes. The document operates at precisely the moment when the person can no longer say what they want.
A second document works alongside it: a power of attorney under the Dying Patient Law, 2005, by which a person appoints an attorney to take medical decisions on their behalf in those same circumstances. The two complement each other: the directives say what, the power of attorney says who.
The difference between them is practical. A written directive is precise but cannot foresee every scenario; an attorney can adapt the decision to the circumstances as they actually arise, but acts on their understanding of what the person wanted. That is why both are usually made together.
Who may make them, and on what conditions
The statute opens the possibility to a wide public, and sets alongside it formal requirements designed to confirm that the document reflects a real and informed wish.
- Age seventeen and over, provided the person has capacity to decide. There is no requirement that they be ill; the document can be made in full health.
- Two witnesses. The document is signed before two witnesses who are not first degree relatives, and both must be physically present at the same time.
- Completion with a professional. The directives form and the full version of the power of attorney are completed together with a physician, nurse or certified healthcare professional who explains the medical meaning of the options.
- The abbreviated version. The abbreviated power of attorney, and the renewal and revocation forms, may be completed independently.
These requirements are not merely formal. They exist to confirm that the person understood what they were consenting to or refusing, and that the document was not made under the influence of someone with an interest in the outcome.
Registration, validity and renewal
A document that stays in a drawer does not help. The statute therefore built a mechanism to ensure the document is found when it is needed.
- Deposit in the registry. The forms are deposited in the central database of the Center for Advance Healthcare Directives at the Ministry of Health, and hospital medical teams can locate them when required.
- Valid for five years. The documents are valid for five years. The Ministry of Health sends a renewal reminder at the end of each period while the document remains in force.
- Revocable at any time. The document can be cancelled at any stage using a revocation form.
The five year limit is not a technicality. It reflects the assumption that a person's wishes on these questions may change over time and with a change in their condition, so a fresh confirmation is required.
Against an enduring power of attorney
The two documents sound similar, and the difference confuses many people. They arise under different statutes, are made in different ways and are deposited in different places.
- A power of attorney under the Dying Patient Law. It concerns medical treatment at the end of life. It is made on a Ministry of Health form and deposited with the Center for Advance Healthcare Directives.
- An enduring power of attorney. It concerns property, personal matters and health broadly, for when a person can no longer manage their affairs. It is made before a lawyer trained for the purpose and deposited with the Administrator General. See enduring power of attorney.
The practical conclusion is that both are needed, not one of them. A comprehensive enduring power of attorney that says nothing express about end of life care leaves the hardest question unanswered, and advance directives alone do not settle property or the rest of a person's affairs.
Alongside them there is also supported decision making, intended for a person who is capable of deciding and needs assistance. See decision supporters.
What is worth settling in the document
The official form presents a list of questions. What makes it a useful document is the precision of the answers, not the fact of filling it in.
- Which treatments. A specific reference to types of treatment, rather than a general statement of consent or refusal.
- In which situations. The same person may want a treatment in one situation and refuse it in another, so the directive is written by reference to the situation and not only to the treatment.
- Who the attorney is, and who the substitute. One person may not be available, so a second is needed.
- How the directives relate to the attorney. What happens where the attorney believes the circumstances differ from those anticipated.
- Who receives a copy. Family members and the family doctor, in addition to deposit in the registry.
An early conversation with the family matters no less than the document. A document that surprises those closest at the critical moment produces dispute at exactly the wrong time.
Its place in estate planning
Estate planning usually deals with what happens to property after death. Advance directives deal with the period before it, and that is precisely the period in which the family has to take the hardest decisions.
A complete plan consists of four documents that speak to each other:
- A will. What happens to the property. See wills and inheritance.
- An enduring power of attorney. Who manages affairs while the person is alive and unable to manage them.
- Advance medical directives and a medical power of attorney. What is to be done medically and who decides.
- A trust, where one is needed. See trusts in estate planning.
The four are usually prepared separately and by different people, and that is the common reason for conflicts between them. See estate planning.
The family's part
Even where a valid document exists, the family is present in the room. Directives do not remove those closest from the picture, but they change what those people are asked to do.
Without a document, family members have to reconstruct what the person would have wanted, and they sometimes disagree. With a document, the question shifts from deciding to identifying: what was written, and is the present situation the one that was anticipated.
Three steps reduce dispute in practice:
- Say so in advance. Tell those closest that the document has been made, and broadly what it contains.
- Hand over a copy. To the attorney, to the substitute and to the family doctor.
- Explain the reasoning. A relative who understands why a particular position was chosen finds it easier to accept at the critical moment.
Mistakes that repeat
Five failures recur, and all of them can be prevented at the drafting stage.
- The document was never deposited. Signed and kept at home, and therefore not located at the hospital at the moment it was needed.
- It expired. Five years passed and no renewal was filed.
- Wording that is too general. A broad statement of consent or refusal, without reference to treatments and situations, leaves the medical team without real guidance.
- No substitute attorney. The sole attorney is unavailable or unable to act at that moment.
- A conflict between documents. An enduring power of attorney saying one thing and advance directives saying another, because they were prepared separately and at different times.
The simple test is to read all the documents through and ask whether a doctor who has never met the family would know what to do at three in the morning.
In summary
Advance medical directives are the part of estate planning that concerns the person rather than their property. They operate while the person is still here and can no longer say what they want, and that is the period in which the family carries the heaviest burden.
- They may be made from age seventeen, by a person with capacity, and in full health.
- Signature is before two witnesses who are not first degree relatives, both physically present together.
- The full form is completed with a physician, nurse or certified healthcare professional; the abbreviated power of attorney may be completed independently.
- The documents are deposited with the Center for Advance Healthcare Directives at the Ministry of Health, are valid for five years and can be revoked at any time.
- They do not replace an enduring power of attorney, and both are needed.
A document made without a conversation with the family, without a substitute attorney or without deposit in the registry may not do the work it was made for. It is therefore prepared as part of an overall plan rather than as a standalone form.
If you want to put this in order for yourself, or to help a parent do so, contact us for an initial assessment. We will explain what each document covers and set out the options available to you.
Questions that recur about advance medical directives
These answers are general and do not replace advice on your own file.
What are advance medical directives?
From what age can they be made?
Who has to be present at signature?
How long is the document valid?
Where is the document kept?
What is the difference between directives and a medical power of attorney?
And how does it differ from an enduring power of attorney?
Can more than one attorney be appointed?
What happens if the family disagrees with the directive?
What is worth writing in the document?
Is a lawyer required?
What if the medical position changes?
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An initial assessment call reviews which documents have already been made, what is missing, and where a conflict could arise between the medical directives, the enduring power of attorney and the will.