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Advance Directives

By Charles Sabatino, JD, Adjunct Professor;Director, Commission on Law and Aging, Georgetown University Law Center;American Bar Association

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Patient Education

Advance directives are legal documents that extend a person's control over health care decisions in the event that the person becomes incapacitated. They are called advance directives because they communicate preferences before incapacitation occurs. There are 2 primary types:

  • Living will: Expresses preferences for end-of-life care

  • Durable power of attorney for health care: Designates a surrogate decision maker

Every state in the US recognizes these documents and encourages their use as a simple legal tool by which people can express their wishes and have them honored. However, formal advance directives are not the only means of expressing such wishes. Both common law and constitutional principles direct that any authentic, clear expression of patients' wishes should be honored if within the scope of generally accepted medical standards.

An advance directive cannot be completed after a patient becomes too incapacitated to understand the nature and effect of an advance directive; and, in most states, the directive does not become effective until after incapacity to make health care decisions has been determined. If no advance directive has been prepared, an authorized surrogate must be identified or appointed to make health care decisions.

Living will

A living will is a limited document that expresses a person’s preferences for end-of-life health care (it is called a “living” will because it is in effect while the person is still alive). In many states, the document is more formally called a medical directive to doctors or a declaration. State laws vary greatly regarding scope and applicability of living wills.

A living will allows people to express preferences for the amount and nature of their health care, from no interventions to maximum treatment. Detailed treatment preferences can be helpful because they provide more specific guidance to practitioners. However, living wills completed long before a person experiences a life-limiting disorder have not usually been very helpful because, among other reasons, many people change their preferences as their circumstances change. A living will cannot compel health care practitioners to provide health care that is medically or ethically unwarranted.

To be legally valid, a living will must comply with state law. Some states require that living wills be written in a fairly standardized way. Others are more flexible, permitting any language as long as the document is appropriately signed and witnessed. In most states, a health care practitioner involved in the patient’s care cannot be a witness. A document that does not comply with state law requirements for statutory living wills may still serve as reliable evidence of a patient’s wishes if it appears to be an authentic expression of the patient’s wishes.

Living wills go into effect when people are no longer able to make their own health care decisions or a medical condition specified in the directive—typically a terminal condition, permanent vegetative state, or the end-stage of a chronic condition—is diagnosed. Often, state law provides a process for confirming and documenting the loss of decisional capacity and the medical condition.

Durable power of attorney for health care

In this document, one person (the principal) names another person (the agent, proxy, or health care representative) to make decisions about health care and only health care. In most states, these documents become legally effective when the principal loses clinical capacity to make health care decisions. Some states recognize immediately effective durable powers of attorney for health care, which in theory means that the agent can make health care decisions immediately; but as a practical matter, the principal can direct and override anything the agent does as long as the principal retains the capacity to make health care decisions. So, the difference is negligible. Like the living will, the durable power of attorney for health care may be referred to by different terms in different states.

People who have both a living will and a durable power of attorney for health care should stipulate which should be followed if the documents seem to conflict. The better option is to combine the two documents into the power of attorney. The strongest virtue of the power of attorney for health care is that it enables a designated decision maker to respond to here-and-now circumstances and options, rather than merely providing directions about hypothetical future medical circumstances such as those not addressed in a living will. The agent generally has the same authority the principal would have had if not incapacitated to know the medical facts and prognosis, discuss medical alternatives, and make decisions about any injury or illness. In most states, a health care practitioner providing care for the patient cannot serve as agent for health care matters. The durable power of attorney for health care can include a living will provision or any other specific instructions but, preferably, should do so only as guidance for the agent, rather than as a binding instruction.

The durable power of attorney for health care typically names an alternate or successor in case the first-named person is unable or unwilling to serve as agent. Two or more people may be named to serve together (jointly) or alone (severally), although reliance on multiple concurrent agents can be problematic. A jointly held power requires that all agents agree and act together. In this arrangement, any disagreement can result in a stalemate until it is resolved by the agents or the courts. A severally held power may be more functional because it allows any named agent to act alone. However, agents in this arrangement can also disagree, and, if irreconcilable, the courts may have to become involved.

The use of the durable power of attorney for health care is valuable for adults of all ages. It is especially critical for unmarried couples, same-sex partners, friends, or other individuals who are considered legally unrelated and who wish to grant each other the legal authority to make health care decisions and to ensure rights of visitation and access to medical information.

Ideally, physicians should obtain a copy of a patient’s living will and durable power of attorney for health care, periodically review the contents with the patient while the patient is still capable, and make it part of the medical record. A copy of the durable power of attorney for health care should also be given to the patient’s appointed agent and another copy placed with important papers. The patient’s attorney should hold a copy of all documents. An increasing number of states offer optional electronic registries for recording advance directives.