Oregon Legislature Adopts New Form Advance Directive for Health Care

Effective September 25, 2021, Oregon will have a new form Advance Directive for Health Care (“advance directive”). If you have previously executed an advance directive in Oregon, there is no need to update it; it remains effective.

Known as a medical power of attorney or living will in common parlance, the Oregon advance directive gives a capable adult (the “principal”) the ability to authorize a health care representative to make health care decisions for the principal when the principal becomes incapacitated. The principal may also provide the representative with personal instructions that express the principal’s preferences regarding certain health care treatments, including instructions for end-of-life care and now, information about the principal’s spiritual beliefs and values.

The advance directive is effective when the principal lacks capacity to make health care decisions. If the principal is incapable, the health care representative generally has the same decision-making power the principal had when capable, may receive information regarding any proposed care, may access the principal’s medical records, and may disclose the principal’s medical records to others.

The principal will indicate for three specific situations whether the principal wants to try all available treatments to sustain the principal’s life, try to sustain life with artificial feeding and hydration but no other treatment, withhold all treatments to sustain life, or allow the health care representative to decide. The situations are terminal illness, advanced progressive illness, and permanent unconsciousness. Importantly, the health care representative cannot withhold or withdraw life-sustaining procedures or artificially administered nutrition and hydration if the principal objects, even if the principal does not otherwise have capacity. The new form allows the principal to prioritize what activities contribute to the principal’s quality of life and may select from a list of everyday activities that if the principal could not do would determine whether the principal would want life-sustaining measures such as communicating with family, friends, and others, being free from long-term severe pain and suffering, knowing the principal’s identity and the identity of others, living without being hooked up to machines, and participating in activities that have meaning to the principal. The principal may also include examples of the principal’s own.

Because the new form now provides the opportunity to identify spiritual or religious beliefs, such as rituals, sacraments, denying blood transfusions, and the like, as well as a plan for how and where the principal will receive care, we recommend that the principal consult with the principal’s spiritual advisor and personal physician to discuss those wishes prior to signing the advance directive. The principal may now attach one or more separate writings addressing these values and wishes to the advance directive form, and those additional pages will be incorporated into the advance directive.

Also new to the form is a space to list additional individuals with whom the principal would like the health care representative to consult. While only the health care representative can make decisions about the principal’s care, many individuals would like input from other family members or close friends. Allowing this consultation gives the representative permission to disclose information to the individuals while still providing one point of contact for the health care providers.

You might be interested in executing a new advance directive if you have specific information to share with your health care representative and the health care providers about your values and beliefs. If you have not executed an advance directive or would like to update your advance directive, please let us know.