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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 direct preferences before incapacitation occurs. There are 2 primary types:
Every state in the US recognizes and has defined these documents by statute to provide a simple legal tool by which people can express their wishes and have them honored. However, advance directives are not the only means of expressing such wishes. Any authentic expression of patients' wishes should be honored.
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 Medicolegal Issues: Consent and Surrogate Decision Making) must be identified or appointed to make health care decisions.
Living will:
A living will expresses a patient'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 some states, the document is called a 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 care. Detailed treatment preferences are desirable because they provide more specific guidance to practitioners. A living will cannot compel health care practitioners to provide health care that is medically or ethically unwarranted.
To be 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 a valid communication of a patient's wishes as long as it is an authentic expression of the patient's wishes.
Living wills go into effect upon the loss of ability to make health care decisions or the existence of a medical condition specified in the directive—typically a terminal condition, permanent vegetative state, or the end-stage of a chronic condition. 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 the attorney-in-fact) 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.
While a living will states a person's specific preferences regarding medical treatment, a durable power of attorney for health care designates an agent to make health care decisions. 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 virtually impossible and because the durable power of attorney for health care designates a decision maker who can respond to here-and-now circumstances, 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 involved in the care of the patient cannot serve as agent for health care matters, unless the practitioner is a close relative. 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 should name 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. However, this arrangement can be unwieldy because agreement may be difficult to achieve and because one of the agents may be unreachable when a critical decision must be made. A severally held power may be more functional because it allows any named agent to act alone. However, this arrangement can also lead to disagreement, and the courts may eventually have to become involved. For example, if ≥ 2 people serve jointly in severally held power and they absolutely cannot agree, the parties are likely to end up in court.
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.
Last full review/revision October 2007 by Charles Sabatino, JD
Content last modified October 2007
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