At Fleming & Curti, PLC, we see a lot of confusion about Arizona health care directives. Many of our clients are unsure about whether they have signed a living will, or whether they need to sign new documents when they are admitted to the hospital. Many people have a hard time understanding Arizona’s unique “Prehospital Medical Care Directive” (frequently called “the orange form”). Others worry about whether their documents are comprehensive, or up-to-date.
We want to help demystify Arizona health care directives. In this primer, we will identify the types of directives that you need to know about, and help you understand whether you need to take any further steps. But note: we are only writing about Arizona law and practices. Much (but not all) of what we say about Arizona health directives may apply in other states. Not in Arizona? You need to discuss these issues with a qualified elder law attorney in your state.
Arizona health care directives and advance directives
The first concept we need to explain involves one particular group of health care directives. If you want to sign documents in advance of any need, you have a number of choices. Together, those health care directives are known as “advance directives.” [Note: though they may be very advanced (particularly if we prepared them for you, of course), they are not advanced directives.] They are directives you might sign in advance.
These are the most important health care directives for most people. In Arizona, they might include one or more of these:
- Living will
- Health care power of attorney
- Mental health care power of attorney
- Prehospital medical care directive
One thing these documents all have in common: you can sign one now, while you are capable and wanting to manage your future care. That’s why they are “advance directives” — you sign them in advance.
The four Arizona advance directives have slightly different purposes. Here’s why you might want to sign each one:
The living will allows you to direct the kind of care you would like to receive. Do you want to insist that every possible treatment be tried, even if you are unable to understand the effect at the time? Then you should say so in a living will. Do you want the opposite? Then your living will should specify that you would not want such treatment.
We prepare living wills for our clients. Usually, but not always, they are embedded in a health care power of attorney. You can get forms to do this yourself — including from the Arizona law itself. But we suggest that you not sign multiple documents. Get a living will that says what you want to say, sign it and stay with that version.
Health care power of attorney
This document is the most potent and important advance directive for most people. It designates a person (or multiple people, or a succession of people) who can act for you. You might include a living will (or sign a separate one), giving your health care agent some direction; if you do, they are supposed to follow your instructions. But you can just sign a health care power of attorney and leave the decisions up to your agent.
You can find health care power of attorney forms online, or in the Arizona law itself (just as with living wills). We also prepare health care power of attorney forms for our clients, usually with living will provisions embedded. Ours are better, of course: mostly they are better because we try to anticipate problems that might arise (but, frankly, probably won’t).
Mental health care power of attorney
For some people, the biggest concern is the possibility they might need mental health treatment — particularly on an inpatient basis. A health care power of attorney may not be potent enough to assure the provision of mental health care. In some cases, the person signing a health care power of attorney might want to specifically designate someone to refuse inpatient mental health treatment (though, of course, involuntary commitment proceedings might still be possible in the face of such a refusal).
Arizona, like a number of other states (but not all of them), specifically authorizes individuals to sign a mental health care power of attorney. The legislature even helpfully provides a sample mental health care power of attorney form. In our practice, we frequently include mental health care powers within our health care power of attorney. You can discuss with us (or your own attorney, if you are not our client) whether you want to leave those powers in your documents. It’s up to you: that’s why these are called advance directives.
Prehospital medical care directive
This advance directive is unique to Arizona. No other state has opted to create a document just like the prehospital medical care directive. Arizona’s law requires:
- the document must be in almost exactly the same language as the statutory form
- it must be on orange paper, so paramedics and aides can find it easily (this is why it is usually called “the orange form”)
- you must have a medical provider sign, indicating that they’ve told you the form might allow you to die
The prehospital medical care directive is not a “do not resuscitate” (DNR) order, though health care providers often mislabel it. A DNR is a doctor’s order, directing that you not receive resuscitation. It is most often entered in a hospital setting, though it might be in a nursing home or elsewhere.
So what is the prehospital medical care directive? It is your written instruction to three kinds of health care providers (and only these three):
- Emergency medical system personnel (EMTs and paramedics, for instance)
- Emergency room physicians
- Hospice care providers
A prehospital medical care directive authorizes those three types of medical providers to forego resuscitative care. They are actually permitted to ignore your “orange form” if they are the least bit uncertain about the circumstances.
Should you sign an orange form? We usually explain your option by asking a question. If you were shopping at a local store, and suddenly collapsed and were unconscious, would you want someone to call the paramedics and to have them try to resuscitate you? If your answer is “yes”, don’t sign an orange form. It is not the same thing as refusing life-sustaining but artificially-provided food and fluid. It is not at all the same thing.
Are there other kinds of Arizona health care directives?
The orange form is the most extreme kind of advance directive available under Arizona law. It is also a sort of hybrid, because it is sometimes not an “advance directive” at all. That is, you are not the only one who can sign your orange form.
We need to explain further. There are health care directives that someone can enter on your behalf, but not signed directly by you. Of course, you will be consulted before these directives are entered — but you don’t direct the care (or withholding of care) yourself. They are health care directives, but not advance directives.
You have to be alert, competent, and willing to sign your health care power of attorney, living will or mental health care power of attorney. Your health care agent or your guardian can sign an orange form on your behalf. If you sign it, that makes it an advance directive (you have directed your care decisions in advance). If one of those other people signs the orange form, it is still a health care directive — but it is not your advance directive.
What other kinds of health care directives can be entered on your behalf? There are at least three categories that we think you ought to be aware of:
- Do not resuscitate (DNR) orders
- Do not hospitalize (DNH) orders
- Physician orders on life-sustaining treatment (or POLST paradigm) forms
Here’s a short introduction to each of those:
Do not resuscitate (DNR)
As we mentioned earlier, this type of order is a medical order. Your physician signs a DNR only after considering your condition, your wishes, instructions from your health care agent, guardian or family members, and the totality of circumstances. It directs that hospital (or, sometimes, nursing home, hospice or other) workers not try to resuscitate you if you suffer cardiac arrest. Often, though not entirely accurately, practitioners rely on a DNR to justify withholding of tube feedings or other extraordinary medical treatments. It is really intended for emergency decisions; a decision to withhold entubation for food or fluids is seldom an emergency.
Do not hospitalize (DNH)
Sometimes non-hospital facilities (like nursing homes, for instance) will allow an advance order not to hospitalize the patient in the event of decline. As a practical matter, this might turn out to be more important than a DNR order, or even an orange form. It might prevent late-night hospitalization for, say, pneumonia or heart irregularities; those hospitalizations often lead to unwanted medical care.
The “physician orders on life-sustaining treatment” paradigm, or POLST, is gaining steam across the country. It is a good effort to address end-of-life care. It specifically speaks to two questions not well-addressed elsewhere:
- How do you document the wishes of someone who does want cardio-pulmonary resuscitation?
- What can you do to document a patient’s wishes if they are not in the hospital or actively under a single physician’s care?
Because of Arizona’s “orange form,” the urgency of a POLST-like process has not been as clear in Arizona as elsewhere. As a consequence, there has been only slight impetus toward developing a formal POLST program in Arizona. Stay tuned: this might change.
So here’s the takeaway: there are a number of things you can do to increase the likelihood that you get the kind of care you wanted at the end of your life. Most important: sign a health care power of attorney and a living will. Also consider a mental health care power of attorney. Maybe you even want to sign an orange form.
But these advance directives are not the only choices. There are other Arizona health care directives to consider.
If you no longer are able to make your own decisions, there are a number of choices available to your health care agent, your guardian, and/or your physician. You might be a candidate for a DNR (or DNH) order. Your guardian or health care agent can sign an orange form on your behalf. No matter what they do, though, they are all supposed to follow your wishes — IF they can figure out what you would want. How might they find out? How about if they look at that living will you signed.
You did sign it, right? Just once, so we can figure out what your actual wishes are/were?