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Advance Directives

by Charles Sabatino, JD

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 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 mentally incapacitated and, in most states, it does not become effective until after incapacity has been determined. If no advance directive has been prepared, an authorized surrogate (see Consent and Surrogate Decision Making) 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 are desirable 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, but as a practical matter, the principal retains decision-making authority until incapacity regardless, so there is little practical difference. 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. Because predicting future circumstances in all of their complexity is impossible and because the durable power of attorney for health care designates a decision maker who can respond to all manner of here-and-now circumstances, whereas a living will states specific preferences regarding specific situations, a durable power of attorney is far more practical and flexible than a living will. The agent is granted the power to discuss medical alternatives with the physicians and make decisions if an accident or illness incapacitates the person. 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, all named agents must be contacted and must agree on every decision; thus, any disagreement results 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, 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.

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