Advance Directives: What They are and What They Do
1. What are advance directives?
"Advance directive" is a general term that applies to two kinds of legal documents. There are two basic types of advance directives (although they may be called by different names):
- living wills
- medical powers of attorney.
The purpose of these documents is to let you give instructions about your future medical care, in the event that you become unable to speak for yourself because of serious illness or incapacity. Each state regulates the use of advance directives in different ways.
2. What is a living will?
A living will is a type of advance directive in which you put in writing your wishes about medical treatment should you be at the end of your life and unable to communicate. Different states call this type of document different things: for example, it may be called a "directive to physicians," "health care declaration," or "medical directive." Regardless of what it is called, its purpose is to guide your family and doctors in deciding how aggressively to use medical treatments to delay your dying.
Your state law may define when the living will goes into effect, and may limit the treatments to which the living will applies. You should read your state's document carefully to be sure that it reflects your wishes. You can add further instructions or write your own living will to cover situations that the state document may not address. Your right to accept or refuse treatment is protected by constitutional and common law. Therefore, even if your state does not have a "living will law," it is wise to put your wishes about the use of life-sustaining treatments in writing.
3. What is a medical power of attorney?
A medical power of attorney is a document that lets you appoint someone you trust to make decisions about your medical care if you cannot make those decisions yourself. This type of advance directive may also be called a "health care proxy," or an "appointment of a health care agent." The person you appoint may be referred to as your health care agent, surrogate, attorney-in-fact, or proxy.
The person you appoint through a medical power of attorney is authorized to deal with all medical situations when you can-not speak for yourself, not just end-of-life decisions. Thus, he or she can speak for you if you become temporarily incapacitated — after an accident, for example — as well as if you become irreversibly ill.
Generally, the law requires your agent to make the same medical decisions that you would have made, if possible. To do this, your agent should examine any specific statements you made, your religious and moral beliefs, and your values in general. If your wishes about a particular medical decision are not known, your agent must act in your best interest, using his or her own judgment.
Some states let you appoint an agent within the living will form. This is different from a medical power of attorney, because an agent appointed in a living will can only make decisions about using life-support treatments, and only if you are in a medical condition specified in the state law (such as "terminally ill," "permanently unconscious," or "imminently dying").
In section II you will find more about appointing a health care agent.
4. Why do I need an advance directive?
Advance directives give you a voice in decisions about your medical care, even when you are unconscious or too ill to communicate. As long as you are able to make and express your own decisions, you can accept or refuse any medical treatment. But if you become seriously ill, you may lose the ability to participate in decisions about your own treatment.
Research has shown that 80 percent of us will die-in a medical facility such as a hospital or nursing home, where medical technology can now prolong life as never before. The quality of that life, however, may be greatly reduced. As a result, many patients, families and caregivers face difficult questions about how much technology to use when the patient cannot get better, but dying can be prolonged. That means most of us will face a decision about whether to use life-sustaining medical treatments at the end of our lives. If we can't speak for our-selves at that point, other people will have to make that decision for us.
Making decisions that can result in a patient's death is difficult and painful for loved ones and caregivers. If your loved ones don't know your values and wishes the decision is even harder to make. Without information about your wishes, serious conflicts can arise between your family and medical caregivers or within the family itself.
Without clear evidence about a patient's wishes, medical care-givers will often continue treatment, not only because they are trained to do that but also to protect themselves from any liability. Even if your loved ones believe that you would not want the treatment, they may not be able to stop it without some record of your wishes.
Providing your loved ones and caregivers with the information they need to make medical decisions for you is a great gift. It can spare them emotional anguish and conflict.
Remember, it's up to you to take the initiative and express your wishes. Your family or doctor are not likely to raise the issue for you.
5. Why bother with an advance directive if I want my family to make any decisions that have to be made for me?
Depending on your state's laws, your family may not be allowed to make decisions about life support for you without written evidence of your wishes. Although doctors usually turn to the next of kin to make most decisions when patients can't speak for themselves, a decision to withhold or stop life sup-port is often handled differently because of its final nature. Some state laws do permit family members to make all medical decisions for their incapacitated loved ones. But other states require clear evidence of the patient's own wishes.
Even in states that do permit family decisionmaking, you should still prepare advance directives for two reasons:
- you can name the person you are most comfortable with to act as your decisionmaker (who may not be your next of kin), and
- your advance directives will make your wishes known. Without knowledge of your wishes, your loved ones may be reluctant to make any decision.
We've heard many families over the years express their thankfulness that their loved ones prepared advance directives. It spared them the anguish of having to guess what to do, in a situation where they were already dealing with the pain of the illness and loss.
6. Should I prepare a living will and also appoint an agent?
Yes. You can best protect your treatment wishes by having both a living will and a health care agent, because each offers some-thing the other does not.
Benefits of appointing a health care agent:
Medical decisionmaking is rarely simple. Treatment decisions have to be made in response to changing medical conditions, and medical situations often unfold unpredictably. Decision-making often involves weighing benefits and drawbacks, and even evaluating the odds for success or failure.
The person you appoint as agent can respond flexibly to changes or unanticipated situations in a way that no document can. In addition, you are legally authorizing that person to make decisions based not only on what you expressed in writing or verbally, but on knowledge of you as a person as well. Your agent can take into account other concerns you may have, such as the effect of your illness on your family, the quality of life that matters to you, and even any concerns you may have about finances.
Living wills address end-of-life decisions only. An agent appointed through a medical power of attorney usually can make health care decisions in a wider range of situations than those involving end-of-life care.
Benefits of having a living will:
If your agent has to decide whether medical treatment should be withheld or withdrawn to permit you to die, your living will can reassure your agent that he or she is following your wishes in these most difficult decisions. In addition, if the person you appointed as agent is unavailable or unwilling to speak for you, or if other people challenge the decision not to use life support, your living will can guide and direct your caregivers.
Thoughtfully prepared, a living will can be an important sup-port to appointing an agent; similarly, your agent can ensure that the spirit, not just the letter of your living will is followed.
7. What if I do not have anyone to appoint as my agent?
If you have no one to appoint as your agent, it is especially important that you complete a clear living will. Be sure that your loved ones, your doctor and anyone else who may be involved with your health care has a copy of the completed document and understands your wishes about medical treatments when you are at the end of life. If you are admitted to a hospital or long-term care facility, you should have the living will made a part of your medical record.
8. When will my advance directives go into effect?
Your advance directives become legally valid as soon as you have signed them in front of the required witnesses. However, as long as you are able to make your own decisions about your medical care, your advance directives will not be used.
Each state sets its own guidelines for when advance directives become operative. The rules may differ for living wills and medical powers of attorney.
Medical power of attorney
Most medical powers of attorney become operative when your physician concludes that you are unable to make your own medical decisions. Many states have an additional requirement that applies only to decisions about life support: before your agent can refuse life-sustaining treatment on your behalf, a second physician must confirm your doctor's assessment that you are incapable of making treatment decisions.
Living will
In most states, before your living will can be acted on, two physicians must certify that you are unable to make medical decisions and that you are in the medical condition specified in the state's "living will law" (such as "terminal illness" or "permanent unconsciousness").
The information that Choice In Dying provides with your state forms explains when advance directives become operative in your state.
9. Will my advance directives be honored in an emergency?
No. In an emergency your consent to treatment is presumed. Emergency medical technicians are not physicians and in most states they are not permitted to decide whether it would be appropriate to honor an advance directive. Instead, they are required to do what is necessary to stabilize the patient for transfer to the nearest hospital. Once the patient's condition is evaluated there, the advance directive can be used if the medical situation calls for it.
Emergency medical technicians cannot honor living will wallet cards, "mini-wills," or similar instruments. Some states and localities do permit emergency Do Not Resuscitate (DNR) orders known as "non-hospital DNR orders." These are usually written by a doctor on a special form. (Your state's department of health or local Emergency Medical Service can tell you if such orders are honored in your area.)
10. Will my advance directives be honored in another state?
The answer to this question varies from state to state. Some states will honor advance directives from another state; others will honor out-of-state advance directives to the extent they conform to the state's own law; and some states do not address the issue. Basically, you have constitutional and common-law rights to consent to or refuse treatment that may be even broader than your rights under any state's law. A state would probably have to honor an advance directive that clearly expressed your treatment wishes.
If you reside in, or receive medical care in, more than one state, we recommend that you complete the advance directives for all of the states involved. It will be easier to have your advance directives honored if they are the ones that the medical facility is familiar with.
11. Will my advance directives be honored in another country?
Advance directives are not legally binding outside of the United States. However, they can still be useful guides to your wishes.
12. Do advance directives ever expire?
An advance directive remains in effect until you revoke it (if you complete a new one, it invalidates the previous one). For this reason you should review your advance directives periodically, to make sure they still reflect your wishes. If you want to change anything in an advance directive once you've completed it, you should make out a new document.
13. Do I need a lawyer to prepare advance directives?
No. You can get state-specific forms from Choice In Dying for a minimal fee. Instructions are included on how to complete them correctly. Your local hospital, local bar association, or the state office on aging may provide them as well. There are also generic (that is, not state-specific) forms available, but you should only use these to supplement the state-specific forms.
Read all of the instructions carefully to be sure that your document is witnessed properly and that you have included all of the necessary information. It might be wise to ask someone else to look over the forms for you, to be sure that you have filled them out correctly.
Choice In Dying also offers an optional service, the Advance Directives Registry, which includes review of your advance directives to ensure their validity, and computerized filing of the documents so they will be available in case of a medical crisis. To learn more about the Advance Directives Registry, contact Choice In Dying.
