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Health care advance directives are documents that communicate a person's wishes about health care decisions in the event the person becomes incapable of making health care decisions. There are two basic kinds of advance directives: living wills and durable powers of attorney for health care.
Normally, people communicate their wishes directly to their doctors. But when a person can no longer communicate sufficiently, another process for decision-making is needed. That is the role advance directives play. If no advance directive has been prepared, someone else may be called upon to make health care decisions that the person may not want. Many states authorize default surrogate decision-makers (see Legal and Ethical Issues: Surrogate Decision Making), usually next of kin. When state law is silent, doctors and hospitals still usually turn to next of kin, although the extent of their legal authority becomes less clear. In the rare event that the issue is referred to a court, courts generally prefer to name a family member as guardian or conservator, but they may also turn to a friend or a stranger to oversee care. A durable power of attorney for health care (and, in some cases, a living will) eliminates almost any need for the courts to get involved and helps ensure that the person's health care decisions will be respected.
Management of
Property:
People who are incapacitated by illness may also have difficulty with nonmedical affairs. Someone may need to pay bills, manage finances, take care of property, and handle business affairs. Having plans to turn over legal authority to a trusted decision maker can minimize disruption and expenses. Three principal mechanisms allow a person to arrange in advance for property and business to be overseen by someone else: a power of attorney, a revocable trust, and joint tenancy. These arrangements are best made with the help of an attorney.
Living
Will
A living will expresses a person's preferences for medical 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. Living wills become effective only when the patient has lost capacity to make health care decisions and the patient has a particular condition defined by state law—usually a terminal condition or permanent unconsciousness. Some states recognize additional conditions such as an end-stage condition (for example, advanced Alzheimer's disease) or any condition specified in the living will.
Many people believe that death is preferable to being perpetually dependent on medical equipment or having no hope of returning to a certain quality of life. Others feel just as strongly that extreme heroic measures and technology should be used to extend life as long as possible, regardless of the degree of medical intervention required or the quality of life that results. A living will allows a person to express either of these preferences (or any intermediate measure that the person finds acceptable).
To be valid, a living will must comply with state law. Many states have specific forms available for people to complete. Some states require that living wills be written in a standardized way. Most are more flexible, permitting any language as long as the document is appropriately signed and witnessed.
Examples of
Language:
Typically, language addresses specific issues such as cardiopulmonary resuscitation (CPR), mechanical ventilation, and artificial nutrition and hydration. Language may also address general preferences, particular combinations of circumstances, or both. For example, to indicate preferences for aggressive medical treatment, the document might state: "I want my life to be prolonged to the greatest extent possible without regard to my condition, the chances I have for recovery, the burdens of the treatment, or the cost of the procedures." Keep in mind, however, that the person's choice has certain limits. For example, health care practitioners are not required to provide treatments that are medically inappropriate or clearly futile.
To prevent heroic attempts to extend life, the document might state: "I do not want my life to be prolonged, and I do not want life-sustaining treatment (including artificial feeding and hydration) to be provided or continued if I can no longer recognize friends and loved ones and am not expected to resume an independent lifestyle." A person can also state that interventions should be limited if a disorder severely limits quality of life or a certain stage of a terminal illness has been reached. However, most living wills stipulate that comfort measures should always be given.
To express a preference for an intermediate position, the document might state: "I want my life to be prolonged, and I want life-sustaining treatment to be provided unless I am in a coma or in a persistent vegetative state that my doctors reasonably believe to be irreversible. After my doctors have reasonably concluded that I am in an irreversible condition, I do not want life-sustaining treatment (including artificial feeding and hydration) to be provided or continued."
Limitations:
Living wills have substantial limitations. For example, they generally address only a narrow range of end-of-life decisions; they cannot realistically anticipate all the serious medical circumstances the person may face in the future; and the written document may not be available at the time and place needed. Nevertheless, a living will can provide general guidance to health care practitioners and the person's substitute decision-makers in the face of serious illness.
Durable
Power of Attorney for Health Care
A durable power of attorney for health care is a document in which one person (the principal) names another person (the agent, or the attorney-in-fact, or proxy) to make decisions about health care. A power is durable if it remains legally effective or becomes effective, when the principal becomes incapable of making health care decisions. Like the living will, this document may be called by different names in different states.
A durable power of attorney for health care differs from a living will in that it focuses on the decision-making process and not on a specific decision. No living will can anticipate all possible circumstances. Thus, the power of attorney can cover a far broader range of health care decisions. Once in effect, the agent can act in the here-and-now, review the medical record, serve as an advocate, discuss care and questions with the medical staff, and decide what the patient would want or what is in the best interest of the patient. The durable power of attorney for health care can include a living will provision—a description of health care preferences—or any other instructions but should, preferably, do so only as guidance for the agent, rather than as a binding selection.
The agent should be selected with great care. A person who strongly wishes to avoid aggressive medical treatment should not name an agent who might not carry out such wishes. For example, selecting as agent a person who believes that every possible medical intervention should be used to prolong life, or a spouse whose emotional state might make it difficult to limit or terminate care, may not be wise. A better choice for a person who has strong preferences but who does not want the limitations of a living will might be a trusted associate, advisor, or a longtime friend. An ideal agent has the ability to talk effectively with health care practitioners and act as a strong advocate, even when faced with resistance from the person's family members, friends, or health care practitioners. A person should discuss the details of possible future medical choices with the agent, because the agent should be guided by the person's preferences. In addition, a person should make sure that the agent is willing to act in this role.
If feasible, the durable power of attorney for health care should name an alternate or successor agent in case the first-named person is unable or unwilling to serve. Two or more people may be named to serve together (jointly) or alone (severally). However, such joint appointments can create conflicts and complications and should probably be avoided or discussed with an attorney.
The law of each state prescribes the essential formalities for a valid durable power of attorney for health care and should be carefully followed. Most states require two witnesses, and a few permit notarization as an alternative. A person who has capacity can cancel the durable power of attorney at any time. The choice of agent does not have to be permanent. If circumstances change, the person can and should create a new durable power of attorney for health care.
The durable power of attorney for health care is important for younger as well as older adults. It is especially important for anyone who wants someone other than next of kin to control decision making (for example, a partner, friend, or anyone else legally unrelated). It is the only way, outside of a court proceeding (which is a complicated process), to give that person the legal authority to make health care decisions and to ensure rights of visitation and access to medical information.
Ideally, copies of the living will or durable power of attorney for health care should be given to every doctor providing care for the person and to the hospital upon admission. Copies should also be placed in the person's permanent medical record, given to the person's lawyer and the appointed agent, and placed with important papers.
Having multiple advance directives or ones that are overly complicated can create confusion. If there is both a living will and a durable power of attorney for health care, the person should stipulate which should be followed if the documents seem to conflict. In general, a durable power of attorney for health care is preferable if the patient has a trusted person to appoint as agent.
Last full review/revision October 2007 by Charles Sabatino, JD
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