What is an Advance Directive

Updated: Jan 5, 2020

This blog post comes from a Legal Links publication I did for the Oregon State Bar.

Advance Directives and Appointment of Health Care Representative

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

Managing your final illness and appointing a health care representative to speak on your behalf can be the most important estate planning document you will complete. In Oregon it is done through a properly drafted and signed legal document. In Oregon, these documents are known as the Advance Directive and Appointment of Health Care Representative.

The Health Care Representative

You can appoint someone called a health care representative to make your health care decisions if you are unable to make them yourself. This health care representative can only make your healthcare decisions if you become incapable of making them yourself. Your health care representative must accept the nomination before the nomination is active. You must sign the advance directive, and have it notarized or witnessed by two qualified witnesses.

Advance Directive

In addition to appointing a health care representative, the advance directive allows you to state your preferences regarding life support and tube feeding under certain circumstances.

Who can serve as a health care representative?

Your health care representative can be any person you want so long as they are an adult and are willing to serve as your representative and follow your stated preferences. People who cannot serve as your health care representative include your attending physician and their employees, the employees of a care facility unless that person agreed to act on your behalf before he or she became employed at the facility. The form must include the health care representative’s contact information including their address, phone number(s), and email.

What are the duties of the health care representative?

The health care representative must attempt in good faith to follow your wishes as expressed in the advance directive. Once your representative agrees to serve, he or she cannot ignore the duty to do so. The only way the representative can avoid this duty is to resign altogether from serving as the representative. You should list one or two alternative representatives in case your first choice is unable to serve or resigns.

The health care representative cannot overrule your decision to a change of care even if it conflicts with the advance directive — regardless of whether the person is legally capable of making that decision. The representative does, however, have the power to allow the person to be admitted to a hospital for up to 18 days in order to get treatment for dangerous behavior that is caused by dementia, even if the person objects.

May I draft my own forms?

Oregon law states that an advance directive and appointment of health care representative must be in a certain form. If you want your document to be valid, you must use the correct form. All health care organizations, including home health agencies, hospice programs, hospital, long term care facilities and health maintenance organizations have the forms and will provide them to you. You may find the form online but make sure it is the current form as outlined in the Oregon Revised Statutes and not an older version. A lawyer can prepare the form and help answer questions or concerns as you complete the form.

Some people may make mistakes on their forms that prevent the document from being legally binding. Even though these cannot necessarily be enforced, courts look at them as having expressed a person’s wishes and desires and should allow them to be honored if they are sufficiently clear and there is no reason to doubt the person’s capacity to express those wishes at the time the form was signed.

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