Advance Directives

Legal statements that allow persons to articulate values and establish treatment preferences to be honored in the future when capacity has lapsed.

All states have laws permitting and governing advance directives, but there is variability in some of the details, and some states have special rules for certain interventions. New York, for example, requires that the patient specifically address the issue of artificially administered food and fluid if the surrogate is to be able to refuse this care.

The Patient Self-Determination Act of 1990 requires that all patients entering federally funded hospitals, nursing homes, or home health care agencies be afforded the opportunity to execute an advance directive if none exists. In most states, the legal requirements are so simple that an attorney's services are unnecessary. Ideally, the directives should be in writing and signed by the patient. Out-of-hospital advance directive forms are available in many communities. The two types of advance directives are living wills and health care proxy appointments, also called a durable power of attorney for health care decision making.

Living Wills

A living will lists the interventions the patient would request, accept, or reject in the future, usually at the end of life. Physicians often have difficulty accepting a patient's choice to abandon aggressive care and permit death.

Most patients use living wills to refuse life-sustaining care when the prognosis for improvement or recovery is hopeless and the ability to relate to others is severely diminished or destroyed. However, as managed care becomes more pervasive and as patients become concerned about being denied care, living wills that request care are becoming more common.

The living will specifies a set of circumstances followed by a set of consequences (eg, "If I am hopelessly ill and my physicians say that I will not recover, then..." or "If I am not able to recognize and relate to family and friends and my physicians say that I will not recover, then..."). The consequences specify the interventions the patient would or would not want (eg, intubation, resuscitation, dialysis, surgery, antibiotic therapy). The document usually states that, despite these specific refusals, all measures necessary for comfort should be provided. The goal of the most usual type of living will--prospective refusal--is to ensure that invasive, aggressive, and life-sustaining treatments will not be used if they would merely prolong the dying process or support a vegetative state. Some living wills limit their applicability to terminal illness; thus a patient desiring to refuse care if in a vegetative state or deep coma should not use this restricted type of living will.

Durable Power of Attorney for Health Care

A durable power of attorney for health care differs from a regular power of attorney, which addresses decision making concerning financial matters or property rights (eg, the right to sell a car or manage stocks).

A durable power of attorney for health care, or health care proxy, is a legal document that allows the patient to appoint a person, called a health care agent or proxy, to make health care decisions should the patient become temporarily or permanently incapacitated or be declared legally incompetent. This legal appointment places a loving, concerned, trusted person in a dialogue with the physician to reach an appropriate decision. The agent's decisions are guided by specific instructions from the patient, by notions of substituted judgment (what the patient would likely want under the circumstances), and by the concept of best interest. The agent can discuss the patient's diagnosis, prognosis, treatment alternatives, and likely outcomes with the physician, respond to the patient's changing condition, and base a decision on current circumstances in light of known patient preferences and values.

Prior discussions between patient and agent provide the agent with a richer understanding of the patient's values and preferences, allowing more nuanced decisions to be made later. This opportunity for dialogue generally results in a better decision than could have been reached by following the static directives in a living will.