Advance Directives

In some states in the United States, to create an advance directive, it may suffice for a person to have a conversation with a doctor. The specific information from such a conversation, sometimes referred to as an oral advance directive, should be placed in the person's medical records.

More often, an advance directive takes the form of one of two documents.

• A living will enables a person to specify his choices for medical care in advance of when such decisions might have to be made.
• A durable power of attorney for health care (sometimes referred to as a proxy) appoints another person (referred to as the health care agent) to make decisions on behalf of the person should he become incapacitated.

With advance directives, an older person informs family, friends, and health care practitioners on how to care for him when he can no longer speak for himself. Being able to follow plans that reflect a person's values and preferences can comfort family members in the event of serious illness and death.

A person should give copies of his living will or durable power of attorney for health care to his doctors. A copy of the durable power of attorney for health care should also be given to the person appointed to carry out the wishes discussed and another copy placed with important papers. The person's lawyer should hold a copy of all documents, and the person should keep copies at home.

Living Will

A living will expresses a person's preferences for medical care in the event that he becomes incapacitated and can no longer communicate his decisions. In some states, the document is called a medical directive to doctors. To be valid, a living will must comply with state law. Some states require that living wills be written in a standardized way. Other states are more flexible, permitting any language as long as the document is appropriately signed and witnessed. Examples of living wills and kits for creating living wills are available from community organizations and government agencies, such as the state department of health and the local Area Agency on Aging, and such kits are also sold in many bookstores. Legal professionals can also provide examples and offer specific advice, but completion of these documents does not require a lawyer.

Most people use living wills to refuse life-sustaining treatment when there is little hope of recovery. Specific issues that may be addressed include

• Undergoing cardiopulmonary resuscitation (CPR) when the heart stops beating
• Receiving assistance from a ventilator when breathing stops
• Using antibiotics to treat infections
• Allowing blood transfusions to replace blood that has been lost

Some people request in their living will that food and fluids be withheld or withdrawn if their medical condition is likely to permanently prevent them from recognizing or relating to loved ones or friends.

Living wills need not serve only as a "menu" listing all unwanted types of care. They can also serve to request certain types of care. For example, a living will might specify that the person wants to be evaluated for hospice care if he is diagnosed with advanced cancer and unable to understand further discussions about options for treating the cancer. It may also request certain measures intended to keep the person as comfortable as possible, such as pain relief. In some cases, a living will is even used to request resuscitation under certain circumstances.

Vague statements are a pitfall to avoid in making a living will. Different doctors may take very different meanings from statements like, "I do not want any heroic measures to be used if my doctors say that I will not recover" or "I want every reasonable kind of care to be offered regardless of how ill I am." However, no matter how specific a person tries to be when preparing a living will, it is impossible to anticipate every possible set of circumstances that might arise.

Reviewing a living will with the doctor at the time it is written helps ensure that it will work the way in which it is intended. Periodic reviews of the document with the doctor allow the person to ask questions and to consider adding or removing certain requests as health status changes and preferences evolve.

Durable Power of Attorney for Health Care

A durable power of attorney for health care (proxy) enables an older person to appoint someone to make health care decisions in the event that he becomes temporarily or permanently incapacitated. The person sought to fill this role is most often a trusted family member or friend. The older person should first establish the person's willingness to serve as health care agent. It is important to make those wishes clear and to ensure that the agent is willing to represent those wishes. A living will can be a valuable tool for structuring the discussion between a person and the health care agent. When a living will is used for this purpose, to avoid confusion, the living will should not be signed, but merely used as a guide.

A durable power of attorney for health care is sometimes prepared by a legal professional, but such preparation is not required. However, some states do require that signatures be notarized. The decisions made by the agent may be guided by specific written or spoken instructions from the older person. A durable power of attorney for health care may include a living will provision—a description of health care choices—but the living will in such cases serves as guidance for the agent rather than as a binding directive. To ensure this, the living will should state that in the event of any differences between the living will and the agent, the agent should have final say in decisions.

The older person should review instructions periodically with the agent to ensure that the appointed person's understanding remains current. If the older person has not given the agent any instructions, the agent makes decisions based on what he believes the person would have wanted under the circumstances or on what he believes to be in the person's best interests.

When an older person with a durable power of attorney for health care becomes incapacitated, the agent discusses treatment alternatives and outlook for recovery with the health care team. The agent then makes decisions based on current circumstances and on what is known about the older person's preferences and values. The agent is also an advocate for the person and can argue for aggressive care or for withholding care as the person's diagnosis, condition, and outlook change. The agent's flexibility while making decisions makes a durable power of attorney preferable to a living will for many people.

A person who is competent can cancel a durable power of attorney at any time. The appointment of an agent does not have to be permanent. If circumstances change, the person can create a new durable power of attorney appointing a new health care agent.