1. Who has the legal right to formulate Advance Directives?
2. Are Advance Directives required?
3. What are examples of Advance Directives?
4. Are Advance Directives written in other states valid in Arizona?
5. When is a health care provider obligated to follow an Advance Directive?
6. What if the Advance Directive violates the law?
7. What is the health care provider or institution objects to the Advance Directive or expressed wishes of the patient on ethical or moral grounds?
8. What if the patient has not completed an Advance Directive nor expressed his wishes for health care treatment?
9. What if the patient's representative is unable to determine what the patient would have wanted?
10. Who is an incapacitated patient's decision-maker?
11. Can a surrogate decision-maker make all health care decisions for an incapacitated patient?
12. What is the patients surrogate decision-makers cannot reach agreement on a treatment course?
13. How can a patient change an Advance Directive?

1. Who has the legal right to formulate Advance Directives?

All competent adults in Arizona. Advance care planning provides an opportunity for the patient to exercise the legal right to self-determination as affirmed by the United States Supreme Court in 1990. The Supreme Court established that patients maintain their right to self determination even when they are no longer able to direct their own health care, and that decisions for incompetent patients should be based on their previously stated wished.

2. Are Advance Directives required?

The Patient Self-determination of 1991 requires that patients be informed of their right to accept or refuse medical treatment and be given the opportunity to specify their wishes in advance of need. Patients admitted to a health care facility or health care plan must also be asked if they have completed an advance directive. Physicians and health care institutions are precluded by law from requiring that a patient complete an Advance Directive.

3. What are examples of Advance Directives?

Health Care (Medical) Power of Attorney (MPOA)

A written designation of an agent (surrogate) to make health care decisions while the principal is unable to do so. When signed by the principal, the document is witnessed or notarized by at least one adult who is not related to the principal by blood, marriage, or adoption; not a beneficiary in the principal's estate, and is not providing health care to the principal.

Click here to view or download an example of a Health Care (Medical) Power of Attorney.

Living Will

A particular form of Advance Directive intended to guide or control the health care treatment decisions that can be made on a person's behalf. A Living Will often includes the phrase, "if I am in a terminal condition", and therefore limits its applicability.

Health Care Directive

A Health Care Directive is a type of Advance Directive that describes a person's treatment preferences and values that can be applied to a variety of health care decision situations. Unlike most Living Wills, a Health Care Directive is not limited to cases of "terminal illness."

Click here to view or download an example of a Health Care Directive.

4. Are Advance Directives written in other states valid in Arizona?

Yes, if they conform to the law of the state in which they were prepared and to Arizona law. Witnessing requirements may vary from state to state.

5. When is a health care provider obligated to follow an Advance Directive?

Health care providers are obligated by Arizona law to follow the medical treatment decisions that are expressed by the patient, either verbally or in writing. If the patient lacks decision-making capacity, either permanently or temporarily, the healthcare provider must follow the medical treatment decisions that were made by the patient before he became incapacitated.

6. What if the Advance Directive violates the law?

Health care providers are not obligated to follow an Advance Directive or patient's expressed wished that do not comply with Arizona law.

7. What is the health care provider or institution objects to the Advance Directive or expressed wishes of the patient on ethical or moral grounds?

Health care institutions are required by law to notify patients on admission if institutional policy or ethics will affect the implementation of an advance directive. If an individual healthcare provider objects to the implementation of a legal advance directive, care may be transferred to another provider within the institution, according to agency policy. If the health care institution as a whole objects to the implementation of a legal advance directive, the health care institution is obligated by law to transfer the patient's care to a facility that will comply with the directive.

8. What if the patient has not completed an Advance Directive nor expressed his wishes for health care treatment?

If an incapacitated patient's choices are unknown, the patient's representative will make choices about treatment decisions based on what he believes the incapacitated person would choose. The decision-maker will decide based on what he knows about the patient's values and preferences. This process is termed "substituted judgment".

9. What if the patient's representative is unable to determine what the patient would have wanted?

The patient's representative must apply the standard of using good faith to decide in the patient's best interests. If an incapacitated patient's representative does not know the decisions, preferences or values of that person as to medical treatment decisions, then the representative must decide in good faith what would be in the best interests of that person, considering relief from suffering, whether functioning will be preserved or restored, and the quality and extent of sustained life.

10. Who is an incapacitated patient's decision-maker?

When an individual becomes unable to make his own decisions, the following hierarchy of decision-makers is outlined in Arizona law:

1. Guardian
2. Health Care (Medical) Power of Attorney
3. Surrogate
   1. The patient's spouse, unless legally separated
   2. An adult child of the patient, or a majority of adult children
   3. A parent of the patient
   4. The patient's domestic partner if the patient is unmarried
   5. A brother or sister of the patient
   6. A close friend of the patient (an adult who has shown special concern for the patient, is familiar with the patient's desires and who is willing and able to become involved in the patient's health care, acting in the patient's best interests.)
   7. The patient's physician, when none of the above persons can be located. The physician may make health care decisions after consulting with the institutional ethics committee, or with a second physician if an ethics committee is unavailable.

11. Can a surrogate decision-maker make all health care decisions for an incapacitated patient?

In Arizona, a surrogate decision-maker can make most medical decisions. However, a surrogate decision-maker cannot decide to remove artificial nutrition that has been started. Legally, only the person, a Health Care (Medical) Power of Attorney or a Guardian can authorize the stopping of artificial nutrition. The decision to withhold or withdraw any other treatment can be made by any surrogate.

12. What is the patients surrogate decision-makers cannot reach agreement on a treatment course?

A disagreement between surrogate decision-makers is often resolved with education and counseling. If resolution is not possible, the matter should be reviewed by the institutions Ethics Committee. If necessary, a representative for the patient may need to seek the opinion of the court.

13. How can a patient change an Advance Directive?

A patient can cancel or change any Advance Directive at any time by telling his agent or health care provider in writing of a decision to do so. Destroying all copies of the old document is recommended, but the most recent directive is the legally binding one.

If a patient is not able to put the changes to an Advance Directive in writing, he can make those changes known verbally to his physician or other health care provider.