By Erin N. Milos, Estate Planning & Administration Attorney
Recent changes to Oregon’s Advance Directive law (ORS 127.505 et seq.) may have you asking whether you need an Advance Directive, or if you will need to update your current one. The new law goes into effect on January 1, 2019. Below is some general information about the Advance Directive in Oregon and how the new law might affect you or your current Advance Directive.
In Oregon, an Advance Directive form is a document used to appoint health care representatives to make health care decisions during periods of incapacity. The Advance Directive is also used to express wishes regarding life-sustaining treatment, such as tube feeding and other forms of life support. Anyone with the ability to make health care decisions can complete an Advance Directive. Minor children, adults under the care of a guardian, and mentally incapacitated persons cannot execute a valid Advance Directive.
Sometimes an Advance Directive is associated with advanced age or illness. However, an up-to-date Advance Directive helps loved ones make health care decisions according to known wishes in the event of an unforeseen medical situation. An Advance Directive also helps ensure that end-of-life care will be guided by the appointed person.
Recent Changes to the Advance Directive Law
The updated Advance Directive law adopts a new statutory form that is more functional and intuitive than the form currently in use. It also provides a new additional form that is limited to the appointment of health care representatives and omits end-of-life wishes. The new law also establishes an Advance Directive Adoption Committee (“Committee”) to review and update the Advance Directive form on an ongoing basis, with changes subject to the approval of the legislature and Governor. The Committee will be made up of thirteen individuals with various areas of expertise, including, among others, the Long-Term Care Ombudsman or his or her designee, medical professionals, lawyers, and representatives for persons with disabilities, consumers of health care services, and the long-term health care community.
The modified Advance Directive form will be used beginning January 1, 2019, but sunsets January 1, 2022. Here are some key differences between the current statutory Advance Directive form and the new updated statutory Advance Directive form:
Current Advance Directive Form
The current Advance Directive includes a section appointing health care representatives and a section giving instructions to appointed health care representatives regarding life-sustaining treatment such as tube feeding and other life support measures. The current Advance Directive requires the signature of two witnesses. Appointed health care representatives must also sign to accept appointment. The current Advance Directive will continue to be used until the new law takes effect on January 1, 2019.
New Advance Directive Form
The new Advance Directive will use simpler, more intuitive language and organization than the current form. The new Advance Directive law provides for two forms: one form used only to appoint health care representatives, and a second form used to both appoint health care representatives and give specific instructions regarding end-of-life decisions. The new law also allows the option of having two witnesses or a single notary sign the Advance Directive. In the new form, the witnesses or the notary must accept the appointment in order for the appointment to be effective.
The instructions in the new form have been reorganized and slightly reworded, replacing a full page of introductory instructions appearing as the first page in the current form. The new form states that any prior Advance Directive will be revoked upon signing a new Advance Directive, and the new form may be revoked in any manner the signer wishes. The new form also includes a section indicating whether the instructions must be followed or are to be considered as mere guidelines.
The Bottom Line
The modified Advance Directive form will provide clearer instructions and the flexibility of using either two witnesses or a notary to witness execution of the document, making the new form more user-friendly. Importantly, the new law does not render your current Advance Directive invalid, even after the law takes effect. You do not need to execute a new Advance Directive unless your wishes have changed. When the time comes to update your Advance Directive, you may notice the new form looks different. However, it still accomplishes the same objectives of appointing health care representatives and expressing wishes regarding end-of-life decisions, just as the old form did. For any questions about this article, you may contact any of the attorneys in the Saalfeld Griggs PC Estate Planning practice group, who would be happy to assist you.