Advance Directive

Advance Directive
Advance Directive

Advance Directive

Overview

An advance directive is a legal document through which a person can give directions about the type of care which he wants before he needs it; when he or she has lost the capacity or competence to make any decisions regarding the required or best-suited treatment.

Other Names

  • Advance healthcare directive
  • Personal directive
  • Medical directive
  • Advance decision
  • Directive to doctors ( referred only to living will)

Types of advance directives

  • There are 2 types of advance directives:
    • A living will
    • A durable power of attorney for healthcare or healthcare proxy
  • Both the documents mentioned above are legal written agreements which allow a person to establish values and treatment preferences to be honored in future when the person has lost his capacity to make decisions.
  • For example, if a person wishes that he or she should not be tube fed or resuscitated, that can be achieved by an advance directive.
  • A person’s preferences for medical care or treatment can be achieved by a living will.
  • If a person wishes that the other person should take decisions related to his or her healthcare and/or the preferences for medical care; it can be achieved by a durable power of attorney for healthcare.

Living Will

  • This document is called a living will because it is in effect while the person is alive.
  • It expresses a person’s preferences for medical care.
  • In some states of the US, this document is also known as a directive to doctors.
  • A great variation can be observed in the laws of various states as far as the living will is concerned.
    • In some states, a legally effective living will can only be prepared by a terminally ill person.
    • In order to be a legally valid document, living will should be in compliance with the state laws.
    • Some states require that living wills should be written in a standardized format.
    • Others are more flexible, permitting the use of any language as long as the document is appropriately signed and witnessed.

Durable power of attorney for healthcare

  • This document facilitates decision-making related to healthcare.
  • This is a document in which one person (the principal) names the other person (the agent or the attorney) to make decisions about healthcare and only healthcare.
  • A power is durable if it remains legally in force even when the principal becomes incapacitated.
  • Selecting an agent should be done with great care.
    • A person who strongly wishes to avoid aggressive medical treatment should not designate as an agent to anyone who believes, based on personal philosophy or religious doctrine, that every possible medical intervention should be used to prolong life.
    • Similarly, a spouse who is under enormous emotional stress may be unable to carry out the person’s preferences, especially if these include limiting or terminating the treatment or care.
    • A trusted business associate or a longtime friend is a better choice for a person who has strong preferences but who do not want the rigidity of a living will.
    • It is important to discuss the details of possible future medical choices with the person named as an agent since the agent should be guided by the person’s preferences.
  • The durable power of attorney for health care should name an alternate person or a successor in case the first named person is unable or unwilling to serve as agent.
  • There are 2 types of durable power of attorney for healthcare:
    • Jointly held power
      • In this case, 2 or more persons may be named to serve together or jointly.
      • This type of document requires that all the agents should agree and act together.
      • In this agreement, all the named agents must be contacted and must agree on every decision.
      • This type of arrangement may also lead to chaos and should probably be avoided unless there are special circumstances that warrant its use.
    • Severally held power.
      • This type of arrangement is usually preferable since it allows any named agent to act alone.

The Need for a Living Will

  • Many people believe 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.
  • If you are one of the above types and if you want to indicate preferences for aggressive medical treatment, the document might state:
    • “I want my life to be prolonged to the greatest possible extent without any regard to my condition, the chances that are for recovery, the burdens of the treatment, or the cost of the procedures.”
  • A large number of people also feel that death is preferable to being perpetually dependent on medical equipment or having no hope of returning to a certain quality of life.
  • If you are one of the above types and if you want to prevent heroic attempts to extend life, this document, in your case might state that:
    • “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.”
    • In this case, you can demand or specify that comfort measures should be taken.
  • If you want to express an intermediate preference, the document in your case might state that:
    • “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.”
  • A living will allows a person to express any of the above-mentioned preferences.

Limitations of a Living Will

  • Living wills address only a narrow range of end-of-life decisions.
  • This is because it’s impossible to predict all the serious medical circumstances a person may face in future.
  • Also, the written document may not be available at the time and place where it’s needed.
  • Additionally, the preferences of a person who has prepared a living will, changes from time to time on the basis of illness and changes in priorities over time.
  • The biggest limitation of a living will is that it is prepared much before it’s need arises. Hence, highly specific directions or instructions are not included in this document for the new and unforeseen circumstances.

Important aspects related to a durable power of attorney for health care

  • A person who is competent can cancel a durable power of attorney at any time.
  • The choice of an agent does not have to be permanent.
  • If circumstances change, the person can create a new durable power of attorney naming a new agent.
  • Special circumstances may have to be addressed in drawing up a durable power of attorney for healthcare.
    • For example, family members have a priority as visitors in a hospital under most circumstances.
  • Unmarried partners and same-sex couples may need special protection to preserve such privileges.
  • A durable power of attorney for health care is critical if the patient wants special status and decision making power for a person who is legally unrelated.

Living will vs durable power of attorney for health care

Living WillDurable Power of Attorney

A living will states
a person’s preferences regarding medical treatment.

It provides guidance on what care should be provided under various circumstances.

A durable power of attorney differs from a living will.

This document designates an agent to make healthcare decisions.

The agent is granted the power to discuss medical alternatives with the doctors and make a decision if an accident or illness incapacitates the person.

The durable power of attorney for healthcare can include a living will provision or a description of health care preferences. But this should be done only to serve as guidance for the agent and not as a binding selection.

Important aspects of advance directives

  • Ideally, a person should give copies of his living will and durable power of attorney for health care to every doctor providing care for him and to the hospital upon admission.
  • A person’s medical record should also contain copies of advance directives.
  • A copy of the durable power of attorney for health care should also be given to the person’s appointed agent and another copy placed with important papers.
  • The person’s lawyer should also hold a copy of all the documents.
  • Some advance directive documents are overly complicated or unfamiliar to doctors and hospitals. This may create confusion.
  • This is especially important if the person has both: a living will and a durable power of attorney to stipulate which should be followed if they appear to be in conflict.
  • In general, a durable power of attorney is preferable if the patient has a trusted person to appoint.
  • The appointed person can then act as an advocate, question the medical staff, and help decide what the patient would want or what is in the best interest of the patient.

Frequently asked questions on advance directives

When does an advance directive come into effect?

  • Unlike most of the legal document which comes into effect from the date of the establishment of the document or the date mentioned in the document, an advance directive comes into effect only after a person’s incapacity has been determined.

What happens when a person becomes incompetent of making any decisions and he has not prepared an advance directive?

  • If no advance directives have been prepared, someone has to take decisions related to his treatment and healthcare.
  • In this case, doctors and hospitals usually turn to the next of the kin.
  • In the rare event when the issue is presented to the court, the control is usually given to a family member.
  • If no appropriate family member can be found, the court appoints a guardian or a conservator who may be a friend or a stranger overseeing the treatment and care.

An advance directive eliminates almost any need for the courts to get involved and helps ensure that the person’s health care decisions will be respected.

Is advance directive valid throughout the country?

  • Please note that the answer to the above question is applicable in every country.
  • An advance directive is valid and applicable throughout the country, but there’s a catch.
  • Every state has different laws and requirements as far as advance directives are concerned.
  • So if your advance directive is in compliance with the laws of the state in which you are receiving the treatment, it’s valid.
  • In the United States, advance directives are valid throughout the country.

What if my healthcare proxy is living in another state?

  • An advance directive from one state may or may not work in the other.
  • This is because the laws and the requirements of the advance directive differ from state to state.
  • But if your directive is in compliance with the laws of both the states, it’s valid.

What should I do if I spend a considerable amount of time in more than 1 state?

  • If you have prepared an advance directive which is in compliance with the laws of your state, check whether this directive is legally acceptable in the other state or not.
  • If it’s not, then prepare advance directives for all the states in which you spend a considerable amount of time.

When does an advance directive expire?

  • An advance directive does not expire.
  • It remains in effect until the person who has prepared an advance directive changes it.

What happens if I prepare a new advance directive?

  • If you prepare a new directive, it automatically invalidates the previous one.

What happens in case of an emergency?

  • Your living will or durable power of attorney for health care will not be honored by an emergency medical technician.
  • In case of an emergency, medical personnel will do what he has to; to stabilize the patient for transfer to a hospital from the site of the accident or from his home or other facilities.
  • Advance directives can be implemented only after a physician:
    • Fully evaluates the patient’s condition.
    • Determines the underlying causes or conditions.
    • Confirms the incompetence of the patient to take any decision.

Do I need a lawyer to prepare an advance directive?

  • This depends on the country/state of your residence as well as the country or state in which you plan to move to in future.
  • In the United States, you don’t need a lawyer as long as you sign them in front of the required witnesses.
  • However, having a lawyer to guide you in preparing any legal document is always beneficial.

Is there anything else that I need to know after I prepare an advance directive?

  • Once you have prepared an advance directive, you should keep reviewing it from time to time.
  • This should be done to ensure that it still reflects your wishes.

Can I make changes to an advance directive?

  • You cannot change an advance directive which you have already prepared.
  • If you want to make any changes, you will have to prepare the entire document once again.
  • Once this new directive is prepared, it automatically cancels the previous one.

What if I don’t prepare an advance directive?

  • If a person is incapacitated and no advance directive exists, some other person or persons must provide directions in decision making.
  • A surrogate can be a person designated by state law as a healthcare decision maker or an informally identified person such as a close family member or a close friend who happens to be available.
  • Most doctors and hospitals accept consent to provide care from spouse, sibling or an adult child or even from a distant or uninvolved relative who can be reached in crisis, although in many states none of these people has the legal right to consent on a person’s behalf without being appointed by a court.
  • Many hospitals and doctors will limit this selection to relatives and will ignore or exclude close friends.
  • It makes practical and ethical sense in accepting the judgment of a close relative or friend over that of a distant relative or total stranger.
  • People without family or close friends who are alone in the hospital are more likely to receive a court-appointed guardian.
  • The surrogate is just like the agent appointed in the durable power of attorney for health care.
  • Any decision taken by a surrogate is based on the three standards in the following order of importance:
    • The instructions expressed by the person such as in a living will or orally when the person was still capable of making decisions.
    • Inferences about what the person would likely want in a particular situation based on what is known about his prior behavior and his patterns of decision making.
    • What the surrogate and health care team believe is in the person’s best interest. This is resorted to when the person’s wishes and values are not known.

Some important medical terms to know before you prepare your advance directive

Code

  • The summoning of professionals trained in cardiopulmonary resuscitation to revive a person’ in cardiac or respiratory arrest.

No code

  • An order signed by a patient’s doctor stating that cardiopulmonary resuscitation should not be performed if a cardiac or pulmonary arrest occurs. This is also called a DNR (do-not-resuscitate).

Cardiopulmonary resuscitation (CPR)

  • An action taken to revive a person in cardiac or respiratory arrest.

Terminally ill

  • The medical state of being near death where there is no hope or cure.

Irreversibly ill

  • The state of debilitation like a coma or persistent vegetative state from which the patient will not recover.

Life-sustaining treatment

  • Any treatment given to postpone the death of a terminally ill person.

Palliative care

  • Measures taken to keep a terminally ill person as comfortable as possible.

Do-not-resuscitate order (DNR)

  • The do-not-resuscitate order placed in a person’s medical record by his doctor informs the medical staff that cardiopulmonary resuscitation should not be performed.
  • This order has been particularly useful in preventing unnecessary and unwanted invasive treatment at the end of life.
  • A DNR order does not mean “do not treat”. It only means that CPR will not be performed. Other treatments will be provided if needed.
    • Doctors discuss with patients the possibility of cardiopulmonary arrest, describe CPR procedures and ask the patient about treatment preferences.
    • If a person is incapable of making a decision about CPR, a surrogate may make the decision based on the person’s previously expressed preferences or if such preferences are unknown, then a decision has to be taken in accordance with the person’s best interests.

Persistent vegetative state

  • This is a state of permanent coma or unconsciousness caused by an injury or illness.
  • No reasonable expectation of recovery exists in this condition.