Entries

Death and Dying: End-of-Life Controversies Macmillan Encyclopedia of Death and DyingGale Encyclopedia of CancerGale Encyclopedia of Mental Disorders Further reading

NON JS

Advance Directives

Advance Directives

The movement toward greater patient participation in health care that began in the 1960s and 1970s focused increasing attention on patients' desire for control over nearly all aspects of medical care, including critical care.

Dramatic medical and technological advances further underscored the importance of planning ahead for end-of-life care. Baby boomers (the generation of people born between 1946 and 1964), on the threshold of aging and faced with caring for elderly parents, became increasingly aware of the need to make provisions for their own future medical treatment. Advance directives filled this need.

ADVANCE DIRECTIVES

What Are Advance Directives?

Advance directives are legal documents that help protect patients' rights of self-determination (the right to make one's own medical decisions, including the right to accept or refuse treatment). These documents are a person's requests concerning health care, should he or she be unable to do so when the need arises due to physical or mental disabilities. There are two main documents in an advance directive: a living will and a durable power of attorney for health care.

A living will is a legal document stating a person's wishes for dealing with life-sustaining medical procedures in case he or she is debilitated and cannot speak for him- or herself. A living will is different from a last will and testament. A last will and testament deals with property and comes into effect after a person has died. A living will deals with health and personal care and is in effect when a person is alive. A durable power of attorney, the other part of an advance directive, is a legal document in which one person gives another (called the agent or proxy) legal authority to act or speak on his or her behalf should he or she become debilitated and not able to make decisions on his or her own.

A Brief History of Advance Directives

In 1967 the Euthanasia Society of America and the attorney Luis Kutner (19081993), the cofounder of Amnesty International, devised the first living will. California was the first state to recognize the legality of living wills (1976) and the durable power of attorney for health care (1984). The California Natural Death Act of 1976 states that to preserve dignity and privacy any adult person may execute a directive directing the withholding or withdrawal of life-sustaining procedures in a terminal condition. As of October 2007, all fifty states and the District of Columbia had laws recognizing the use of living wills and durable powers of attorney for health care, although the provisions of these laws varied from state to state. (See Table 7.1.)

LIVING WILLS

As mentioned previously, a living will is one part of an advance directive. It is a document that outlines a patient's preferences about end-of-life medical treatments in the event that he or she is unable to communicate or make his or her own decisions. Laws regulating living wills vary from state to state. For example, Abigail Petersen explains in Survey of States' Health Care Decision-Making Standards (BIFOCAL: Bar Associations in Focus on Aging and the Law, vol. 28, no. 4, April 2007) that in 2007 twenty-seven states placed limits on allowing the withdrawal of life support from pregnant patients. In the most restrictive states a living will request to withhold or withdraw life support would not be honored if the patient was a pregnant woman. In some states, however, pregnancy limitations were less restrictive. They might state, for example, that life support could be withdrawn from a pregnant patient, but only if she had made her wishes explicit in her living will to withdraw life support even if she were pregnant.

TABLE 7.1
Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
1. Alabama ALA. STAT. §22-8A-2 to -14 (West 2007). Natural Death Act See also Durable Power of Attorney Act, §26-1-2 Separate living will statute: NO Combined advance directive [modeled on UHCDA] * YES Must be substantially followed
  • Mental health facility admission and treatments
  • Psycho-surgery
  • Sterilization
  • Abortion
  • Pregnancy limitation
  • Nutrition & hydrationrefusal permitted if expressly authorized
  • Indiv. provider*

    * Exception for relatives employed by the provider

  • 2 or more witnesses age 19 or older
  • Minor = 18
  • Agent
  • Proxy signor
  • Relative
  • Heir
  • Person responsible for care costs
NO YES
2. Alaska ALASKA STAT. §13.52.010 to -.395 (West 2007) Health Care Decisions Act Separate living will statute: NO Combined advance directive [modeled on UHCDA ]* plus incorporates mental health directive YES Optional
  • Psycho-surgery*
  • Sterilization*
  • Abortion
  • Removal of bodily organs*
  • Temporary admission to mental health facility*
  • Electro-convulsive therapy*
  • Psychotropic medication*
  • Life-sustaining procedures*
  • Pregnancy limitation *
  • Consent/refusal permitted only if expressly authorized.
  • Facility provider*

    * Exception for relatives

  • 2 witnesses or notarized
  • Agent
  • Facility provider One may not be:
  • Relative
  • Heir
Organ donation YES
3. Arizona Ariz. Rev. Stat. Ann. §36-3201 to -3262 (West 2007) Combined advance directive YES Optional None specified None specified
  • 1 witness or notarized
  • Agent
  • Provider
  • If only one witness, person maynot be:
  • Relative
  • Heir
Autopsy Organ donation YES
4. Arkansas Ark. Code. Ann. §20-13104 (2007) Durable Power of Attorney for Health Care Act See also Ark. Code Ann. §20-17-201 to -218 (proxy appointment in living will declaration) Special DPA NO (But proxy appointment in living will declaration does have optional form)
  • Life-sustaining treatmentunless the DPA incorporates a proxy authorization from statute, §20-17-202 the living will declaration
  • Pregnancy limitation
None specified
  • 2 witnesses
None specified NO YES, if part of a (living will) declaration
5. California Cal. Probate Code §4600 to -4948 806 (West 2007) Separate living will statute: NO Combined advance directive YES Optional
  • Civil commitment
  • Electro-convulsive therapy
  • Psycho-surgery
  • Sterilization
  • Abortion
  • Supervising indiv. provider*
  • Facility provider*
  • Conservatorunless conditions are met.

    * Exception for relatives who are employees of

  • 2 witnesses or notarized
  • Special institutional requirements
  • Agent
  • Indiv. provider
  • Facility provider One may not be:
  • Relative
  • Heir
Autopsy Organ donation Disposition of remains YES
TABLE 7.1
Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
6. Colorado Colo. Rev. Stat. §15-14-503 to -509 (West 2007) Colorado Patient Autonomy Act See also §15-14-501 to -502 and §15-14-601 to -611 re DPA Separate living will statute: Colo. Rev.Stat. §15-18-101 to -113 Special DPA NO None specified None specified None specified N/A NO YES
7. Connecticut Conn. Gen. Stat. §19a-570 to -580d (West 2007) See also Conn. Gen. Stat. §1-43 et seq. (2007) (statutory short form DPA) and § 1-56r (designation of person for decision-making) Separate living will statute: NO Combined advance directive YES Optional
  • None specified (but authority is described as authority to convey principal's wishes, rather than to make decisions for principal.)
  • Pregnancy limitation
  • Facility provider*
  • Attending physician
  • Administrator or employee of gov't agency financially responsible for care*

    * Exception for relatives

  • 2 witnesses
  • Special institutional requirements
  • Agent
NO NO
8. Delaware Del. Code Ann. tit. 16, §2501 to 2518 (2007) Separate living will statute: NO Combined advance directive [modeled on UHCDA] * YES Optional
  • Pregnancy limitation
  • Residential LTC facility provider*

    * Exception for relatives

  • 2 witnesses
  • Special institutional requirements
  • Facility provider*
  • Relative
  • Heir
  • Creditor
  • Person responsible for care costs
NO YES
9. District of Columbia D.C. Code Ann. §21-2201 to -2213 (2007) Separate living will statute: D.C. Code Ann. §7-621 to -630 (2007) Special DPA YES Optional
  • Decision to medicate defendant to render him/her competent to stand trial
  • Indiv. provider
  • Facility provider
  • 2 witnesses
  • Principal
  • Individual provider
  • Facility provider
  • One may not be relative or heir
NO NO
10. Florida Fla. Stat. Ann. §765.101 to -.404 (West 2007) Separate living will statute: NO Combined advance directive YES Optional
  • Mental health facility admission*
  • Electro-convulsive therapy*
  • Psycho-surgery*
  • Sterilization*
  • Abortion
  • Experimental treatments not approved by IRB*
  • Life-sustaining procedures while pregnant*
  • Preganancy limitation*

    * Consent/refusal permissible if expressly authorized

None specified
  • 2 witnesses
  • Agent
  • One may not be spouse or relative
Autopsy (see F.S.A. §872.04) -Organ donation YES
11. Georgia Ga. Code Ann. §31-36-1 to -13 (West 2007) Separate living will statute: §31-32-1-12 (West 2007) Special DPA YES Optional
  • Mental health facility admission or treatment under Title 37 of code
  • Psycho-surgery
  • Sterilization
  • Indiv. provider directly or indirectly involved
  • 2 witnesses
  • Special institutional requirements
None Autopsy Organ donation-Disposition of remains NO
12. Hawaii Hawaii Rev. Stat. §327E-1 to -16 (2007) See also Hawaii Rev. Stat. §551D-2.5 re DPA for health care Separate living will statute: NO Combined advance directive [modeled on UHCDA] * YES Optional None specified
  • Facility provider*

    * Exception for relatives

  • 2 witnesses or notarized
  • Indiv. provider
  • Facility provider
  • Agent One may not be
  • Relative
  • Heir
No YES
TABLE 7.1
Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
13. Idaho Idaho Code §39-4501 to -4509 (West 2007), specifically §39-4505. Separate living will statute: NO Combined advance directive YES Optional Pregnancy limitation
  • Indiv. provider*
  • Community care facility provider*

    * Exception for relatives who are employees of

  • 2 witnesses or notarized
  • Agent
  • Indiv. provider
  • Community care facility One may not be relative or heir
No No
14. Illinois 755 ILCS 45/41 through 412 (West 2007) Separate LW statute: 755 ILCS 35/1 to 35/10 Special DPA YES Optional None specified
  • Indiv. provider
None specified None specified Autopsy Organ donation Disposition of remains Yes
15. Indiana Ind. Code §§30-5-1-1 to 30-5-5-19 (West 2007), specifically §30-5-5-16 and -17, AND Ind. Code §§16-36-1-1 thru -19, specifically §16-36-1-6 and -7 General DPA with health powers NO but mandatory language for authority re life-sustaining treatment (§30-5-5-17) None specified None specified
  • Notarized or one witness
Agent Autopsy Organ donation Disposition of remains (but powers terminate upon death of principal) Yes
Separate LW statute: Ind. Code Ann. §16-36-4-1 to-21 Ind. Code Ann. §16-36-1-1 to -14 (West 2007) Health care consent statute including appointment of health care representative NO but mandatory language above is incorporated by reference at §16-36-1-14 None specified None specified
  • 1 witness
  • Agent
NO NO
16. Iowa Iowa Code Ann. § 144B. 1 to .12 (West 2007) Separate LW statute: Iowa Code Ann. §144A.1 to .12 Special DPA YES Optional None specified
  • Indiv. provider*

    * Exception for relatives

  • 2 witnesses or notarized
  • Agent
  • Indiv. provider One may not be relative
NO YES
17. Kansas Kan. Stat. Ann. §58-625 to 632 (2003) Separate LW statute: Kan. Stat. Ann. §65-28,101 to 28,109 Special DPA YES Must be substantially followed
  • Cannot revoke previous living will
  • Indiv. provider*
  • Facility provider*

    * Exception for relatives & religious community members

  • 2 witnesses or notarized
  • Agent
  • Relative
  • Heir
  • Person responsible for care costs
Autopsy Organ donation Disposition of remains YES
18. Kentucky Ky. Rev. Stat. §311.621 to .643 (Baldwin 2007) Separate LW statute: NO Combined advanced directive (but called Living Will Directive) YES Must be substantially followed
  • Nutrition & hydration*
  • Pregnancy limitation
  • Refusal permissible if specified conditions are met
  • Facility provider*

    * Exception for relatives

  • 2 witnesses or notarized
  • Relative
  • Facility provider
  • Attg. physician
  • Heir
  • Person responsible for care costs
NO NO
19. Louisiana La. Rev. Stat. Ann 40:1299 .58.1 to .10 (West 2007) See also DPA (Procuration) statute: La. Civ. Code Ann. Art 2985 to 3034 (West 2007), specifically art. 2997 Separate LW statute: NO Proxy contained in living will statute YES Optional
  • Powers implicitly limited to executing a living will declaration on behalf of principal. However, a DPA (a procuration) may confer health decision powers generally on an agent (a mandatory)
None specified 2 witnesses
  • Relative
  • Heir
NO YES
TABLE 7.1
Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
20. Maine Me. Rev. Stat. Ann. tit. 18A, §5-801 to §5-817 (West 2007) Separate LW statute: NO Combined advance directive [modeled on UHCDA] * YES Optional
  • Mental health facility admission, consent permissible if expressly authorized
  • LTC facility provider* *

    * Exception for relatives

  • 2 witnesses
None specified NO YES
21. Maryland Md. Code Ann. [Health-Gen.] §5-601 to -618 (2007) Separate LW statute: NO Combined advance directive YES Optional None specified
  • Facility provider*

    * Exception for relatives

  • 2 witnesses
  • Also recognizes oral directive to a physician with one witness
  • Agent
  • One must not be: heir, or have any other financial interest in person's death
NO YES
22. Massachusetts Mass. Gen. Laws Ann. Ch. 201D (West 2007) Separate LW statute: None Special DPA NO None specified
  • Facility provider*

    * Exception for relatives

  • 2 witnesses
  • Agent
NO YES
23. Michigan Mich. Comp. Laws Ann. §700.5506 to 5512 (West 2007) Separate LW statute: None Special DPA Only for agent's acceptance
  • Pregnancy limitation
  • Life-sustaining procedures
  • Refusal permissible if expressly authorized
None specified
  • 2 witnesses Agent must accept in writing before acting as agent (patient advocate)
  • Agent
  • Heir
  • Relative
  • Indiv. provider
  • Facility provider
  • Employee of life/health insurance provider for patient
Organ donation NO
24. Minnesota Minn. Stat. Ann. §145C.01 to .16 (West 2007) Separate LW statute: Minn. Stat. §145B.01 to .17 (West 2007) Combined advance directive YES Optional None specified
  • Indiv. provider*
  • Facility provider*

    * Exception for relatives

  • 2 witnesses or notarized
  • Agent
  • One may not be provider
Organ donation Disposition of remains YES
25. Mississippi Miss. Code Ann. §41-41-201 to -229 (West 2007) Separate LW statute: NO Combined advance directive [modeled on UHCDA] YES Optional
  • Mental health facility admission, consent permissible if expressly authorized
  • LTC facility

    * Exception for relatives

  • 2 witnesses or notarized
  • Agent
  • Indiv. provider
  • Facility provider
  • One may not be relative or heir
NO YES, but only if directive complies with this act
26. Missouri Mo. Ann. Stat. §404.800-.872 (West 2007) and cross-referenced parts of §404.700 to .735 (DPA statute) Separate LW statute: Mo. Ann. Stat. §459.010 to 459.055 (West 2007) Special DPA NO
  • Nutrition & hydration*

    * Refusal permissible if expressly authorized

  • Att. physician*
  • Facility provider*

    * Exception for relatives and members of same religious community

  • Must contain language of durability and be acknowledged as conveyance of real estate (§404.705)
None specified NO YES
27. Montana Mont. Code Ann. §50-9-101 to -206 (2007). Also incorporates by reference §72-5-501 and -502 (DPA statute) Separate LW statute: NO contained in living will statute: No Proxy contained in living will statute YES Optional
  • Pregnancy limitation
None specified
  • 2 witnesses under LW statute
  • DPA statute: none, although customarily notarized
None specified NO YES
TABLE 7.1
Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
28. Nebraska Neb. Rev. Stat. §30-3401 to -3432 (2007) Separate LW statute: Neb. Rev. Stat. §20-401 to -416 (2007) Special DPA YES Optional
  • Life-sustaining procedures*
  • Nutrition & hydration*
  • Pregnancy limitation

    * Refusal permissible if expressly authorized

  • Att. physician*
  • Facility*
  • Any agent serving 10 or more principals*

    * Exception for relatives who are employees of.

  • 2 witnesses or notarized
  • Agent
  • Spouse
  • Relative
  • Heir
  • Att. physician
  • Insurer One may not be facility provider
NO YES 29. Nevada Nev. Rev. Stat. §449.800 to .860 (2007) Separate LW statute: Nev. Rev. Stat.449 .535 to 690 (2007) with proxy designation. NB. LW statute recognizes an agent under a regular DPA with authority to w/h or w/d life-sustaining treatment. Special DPA YES Form with disclosure statement must be substantially followed
  • Mental health facility admission
  • Electro-convulsive therapy
  • Aversive intervention
  • Psycho-surgery
  • Sterilization
  • Abortion
  • Indiv. provider*
  • Facility provider*

    * Exception for relatives

  • 2 witnesses or notarized
  • Agent
  • Indiv. provider
  • Facility provider
  • One may not be relative or heir
NO NO
30. New Hampshire N.H. Rev. Stat. Ann. §137-J:1 to -J:16 (2007) LW statute: Repealed Combined advanced directive Form and disclosure statement must be substantially followed
  • Mental health facility admission
  • Sterilization
  • Pregnancy limitation
  • Nutrition & hydration*

    * Refusal permissible if expressly authorized

  • Facility provider*

    * Exception for relatives who are employees of

  • 2 witnesses or notarized
  • Principal must acknowledge receipt of mandatory notice
  • Agent
  • Spouse
  • Heir
  • AH physician
  • One may not be residential care provider
NO YES
31. New Jersey N.J. Stat. Ann. §26:2H-53 to -81 (West 2007) Separate LW statute: NO Combined advance directive NO
  • None specified
  • Att. physician
  • Facility provider

    * Exception for relatives

  • 2 witnesses or notarized
  • Agent
NO YES 32. New Mexico N.M. Stat. Ann. §24-7A -1 to -18 (West 2007) Separate LW statute: NO Combined advance directive [modeled on UHCDA] * YES Optional
  • Mental health facility admission
  • LTC facility provider

    * Exception for relatives

  • 2 witnesses recommended, but not required
  • None specified
NO YES, but only if directive complies with this act
33. New York N.Y. Pub. Health Law §2980 to 2994 (McKinney 2007) Separate LW statute: None Special DPA YES Optional
  • Nutrition & hydration*

    * Principal must make his/her wishes reasonably known

  • Att. physician*
  • Facility provider*
  • Any agent serving 10 or more principals*

    Exception for relatives who are employees of

  • 2 witnesses
  • Special institutional requirements
  • Agent
NO YES
34. North Carolina N.C. Gen. Stat. §32A-15 to -26 (2007) Separate LW statute: N.C. Gen. Stat. §90-320 to -322 (2007) Special DPA YES Optional None specified
  • Indiv. provider*
  • 2 witnesses and notarized
  • Relative
  • Heir
  • Att. physician
  • Facility provider
  • Creditor
YES (but authority terminates on death of principal) NO
TABLE 7.1
Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
35. North Dakota N.D. Cent. Code §23-06.5-01 to -18 (2007) Special DPA YES Optional
  • Mental health facility admission >45 days
  • Psycho-surgery
  • Abortion
  • Sterilization
  • Indiv. provider*
  • Facility provider*

    * Exception for relatives who are employees of

  • 2 witnesses or notarized
  • Agent must accept in writing
  • Agent*
  • Spouse*
  • Heir*
  • Relative*
  • Creditor* One may not be:
  • Indiv. provider
  • Facility provider

    * Also disqualifies notary

NO YES
36. Ohio Ohio Rev. Code §1337.11 to 17 (West 2007) Separate LW statute: Ohio Rev. Code §2133.01 to .15 (West 2007) Special DPA Only for mandatory disclosure statement
  • Life-sustaining procedures*
  • Nutrition & hydration*
  • Pregnancy limitation*
  • Refusal permissible if specified conditions are met
  • Att. physician*
  • Nursing home administrator*

    * Exception for relatives who are employees of

  • 2 witnesses or notarized
  • Agent
  • Relative
  • Att. physician
  • Nursing home administrator
NO YES
37. Oklahoma Okla. Stat. Ann. tit. 63, §3101.1 to .16 (West 2007) Separate LW statute: NO Combined advance directive YES Must be substantially followed
  • Nutrition & hydration*
  • Pregnancy limitation

    * Refusal permissible if expressly authorized

None specified
  • 2 witnesses
  • Heir
NO YES
38. Oregon Or. Rev. Stat. §127.505 to .660 and 127.995 (2007) Separate LW statute: NO Combined advance directive YES Must be followed. But recognizes that any other form constitutes evidence of the patient's desires and interests
  • Mental health facility admission
  • Electro-convulsive therapy
  • Psycho-surgery
  • Sterilization
  • Abortion
  • Life-sustaining procedures*
  • Nutrition & hydration*

    Refusal permissible if expressly authorized or if specified conditions are met

  • Attending physician*
  • Facility provider*

    * Exception for relatives

  • 2 witnesses
  • Agent must accept in writing
  • Special institutional requirements
  • Agent
  • Att. physician
  • One may not be relative, heir, or facility provider
NO YES
39. Pennsylvania Pa. Stat. Ann. tit. 20, §5421 to §5488 (West 2007) Combined advance directive YES Optional
  • Nutrition & hydration
  • Pregnancy limitation

    * Refusal permissible if expressly authorized or specified conditions are met

  • Indiv. provider*
  • Facility provider*

    * Exception for relatives

  • 2 witnesses
  • Person who signs AD on principal's behalf
Autopsy Organ donation Disposition of remains YES 40. Rhode Island R.I. Gen. Laws §23-4. 10-1 to -12 (2007) Separate LW statute: R.I. Gen Laws §23-4.11-1 to -15 (2007) Special DPA YES Not clear whether optional or mandatory None specified
  • Indiv. provider*
  • Community care facility*

    Exception for relatives who are employees of

  • 2 witnesses
  • Principal must be Rhode Island resident
  • Agent
  • Indiv. provider
  • Community care facility
  • One may not be relative or heir
NO YES
TABLE 7.1
Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
41. South Carolina S.C. Code §62-5-501 to -505 (2007), particularly §62-5-504. Separate LW statute: S. C. Code §44-77-10 to -160 (also permits appointment of agent) Special DPA (within general DPA statute) YES Must be substantially followed (but conventional DPAs may also contain health powers)
  • Nutrition & hydration necessary for comfort care or alleviation of pain*
  • Pregnancy limitation

    * Refusal permissible if expressly authorized

  • Indiv. provider*
  • Facility provider*
  • Spouse of a provider*

    * Exception for relatives

  • 2 witnesses
  • Agent
  • Spouse
  • Relative
  • Heir
  • Attending physician
  • Creditor
  • Life insurance beneficiary
  • Person responsible for care costs
  • One may not be facility provider
Organ donation YES
42. South Dakota S.D. Codified Laws §59-7-1-9 (2007) See also §34-12C-1 to -8 (health care consent procedures) Separate LW statute: S.D. Codified Laws §34-12D-1 to -22 (2007) General DPA that permits health decisions authority

NO

permissible if

  • Pregnancy limitation
  • Nutrition & hydration*

    * Refusal permissible if expressly authorized or other conditions are met

None specified None specified None specified NO YES
43. Tennessee Term. Code Ann §68-11-1801 to -1815 (2007) Separate LW statute: NO Combined advance directive NO None specified None specified
  • 2 witnesses or notarized
  • Agent
  • Provider
  • Facility
  • One may not be relative or heir
NO YES 44. Texas Tex. [Health & Safety] Code Ann. §166.001 to -.166 (Vernon 2007) Separate LW statute: NO

(1) Special DPA

(2) Proxy contained in LW

(1) Special DPA: (medical PoA): YES. Must be substantially followed plus mandatory disclosure statement

(2) LW: YES Optional

  • Mental health facility admission
  • Electro-convulsive therapy
  • Psycho-surgery
  • Abortion
  • Comfort care
  • Indiv. provider*
  • Facility provider*

    * Exception for relatives who are employees of

  • 2 witnesses

One may not be:

  • Agent
  • Att. physician
  • Relative
  • Facility
  • Heir
  • Creditor
NO YES
45. Utah Utah Code Ann. §75-2-1101 to -1119 (2007) Separate LW statute: NO Special DPA YES Must be substantially followed
  • Life-sustaining procedures*
  • Pregnancy limitation

    * Agent makes health care decisions by executing a medical directive

None specified
  • Notarized
None specified NO YES
46. Vermont Vt. Stat. Ann. tit. 18, §5263 to 5278 (2007) Combined advance directive YES Disclosure statement must be substantially followed Form optional
  • Mental health facility admission
  • Indiv. provider*
  • Residential care provider*

    Funeral/crematory/cemetery representative (if authorized to dispose of remains or donate organs)

    * Exception for relatives who are employees of

  • Warning disclosure
  • 2 witnesses
  • Special institutional requirements
  • Agent
  • Indiv. provider
  • Residential care provider
  • Spouse
  • Heir
  • Creditor
  • Funeral/crematory/cemetery representative

Organ donation

Disposition of remains

YES
TABLE 7.1 Health care power of attorney and combined advance directive legislation, October 2007
State Type Form Limits on agent's powers Prohibited agents Formalities of execution Prohibited witnesses Authority over autopsy, organ donation or remains Comity provision
Abbreviations: LW = Living Will. DPA = Durable Power of Attorney. UHCDA = Uniform Health Care Decisions Act.
Note: The descriptions and limitations listed in this chart are broad characterizations for comparison purposes and not as precise quotations from legislative language.
SOURCE: Health Care Power of Attorney and Combined Advance Directive Legislation?October 2007, American Bar Association, Commission on Legal Problems of the Elderly, 2007, http://www.abanet.org/aging/legislativeupdates/docs/HCPA-CHT_08.pdf (accessed March 10, 2008). Copyright © 2007 by the American Bar Association. Reprinted with permission.
47. Virginia Va. Code §54.1-2981 to -2993 (West 2007) Separate LW statute: NO Combined advance directive YES Optional
  • Mental health facility
  • Psycho-surgery
  • Sterilization
  • Abortion
  • Decisions about visitation unless expressly authorized
None specified
  • 2 witnesse
  • Spouse
  • Relative
Organ donation YES
48. Washington Wash. Rev. Code Ann. §11.94.010 to .900 (West 2007) Separate LW statute: Wash. Rev. Code Ann. § 70.122.010 to -.920 (West 2007) General DPA NO Cross reference to guardianship law [RCWA 11.92.043(5)]:
  • Electro-convulsive therapy
  • Psycho-surgery
  • Other psychiatiric
  • Amputation
  • Indiv. provider*
  • Facility provider*

    * Exception for relatives

None specified N/A NO YES
49. West Virginia W. VA. Code Ann. §16-30-1 to -25 (West 2007) Separate LW statute: NO Combined advance directive (but maintains separate living will and medical power of attorney documents) YES Optional
  • Limit on agent's authority to revoke a pre-need funeral contract
  • Indiv. provider*
  • Facility provider*

    * Exception for relatives who are employees of

  • 2 witnesses and notarized
  • Agent
  • Att. physician
  • Principal's signatory
  • Relative
  • Heir
  • Person responsible for care costs
Autopsy Organ donation Disposition of remains YES
50. Wisconsin Wis. Stat. Ann. §155.01 to .80 (West 2007) See DPA cross reference §243.07(6m) (West 2007) Separate LW statute: Wisc. Stat. Ann. §§l54.0l to .l5 (West 2007) Special DPA YES Optional, but but discloser statement is mandatory
  • Admission to facility for mental health/retardation or other listed conditions
  • Electro-convulsive therapy
  • Drastic mental health treatment
  • Admission to nursing home or residential facilityvery limited unless expressly authorized in the document
  • Nutrition & hydradation*
  • Pregnancy limitation

    * Refusal permissible only if specified conditions are met

  • Indiv. provider*
  • Facility provider*

    * Exception for relatives

  • 2 witnesses
  • Agent
  • Indiv. provider
  • Facility provider*
  • Relative
  • Heir
  • Person responsible for care costs

    * Exception for chaplains & social workers

Organ donation YES
51. Wyoming Wyo. Stat. §35-22-401 to -416 (2004) Separate LW statute: Wyo. Stat §§35-22-101 to -109 (2004) Combined advance directive YES Optional None specified
  • Residential or community care provider*

    * Exception for relatives who are employees of

  • 2 witnesses or notarized
  • Agent
  • Indiv. provider
  • Facility provider
NO NO

Uniform Health-Care Decisions Act

Separate LW statute: NO

Combined advance directive YES Optional
  • Mental health facility admission, consent permissible if expressly authorized
  • LTC facility provider
  • 2 witnesses recommended, but not required
None NO YES, but only if directive complies with this act

Living wills enable people to list the types of medical treatments they want or do not want. It is therefore important for an individual contemplating a living will to know what these treatments involve. Some examples of life-prolonging treatments patients should consider when preparing a living will include cardiopulmonary resuscitation, mechanical ventilation, artificial nutrition and hydration, and kidney dialysis.

An advance directive form is included in the model Uniform Health Care Decisions Act (UHCDA). This model law was approved by the National Conference of Commissioners on Uniform State Laws in 1993 to provide some consistency among state advance directives and remained a model law as of October 2007. Its advance directive form offers several options that include treatments to prolong life. (See Table 7.2.) The states whose advance directives were modeled on the UHCDA are noted in the column type in Table 7.1.

Another form, called Five Wishes, was developed in Florida by the nonprofit organization Aging with Dignity and is now distributed nationwide. The document probes legal and medical issues as well as spiritual and emotional ones. It even outlines small details, such as requests for favorite music to be played and poems to be read, and provides space for individuals to record their wishes for funeral arrangements. The document is relatively easy to complete because it uses simplified language rather than legal or medical jargon.

The 2007 edition of Five Wishes met living will or advance directive criteria in forty states and the District of Columbia. (See Figure 7.1.) It did not meet advance directive criteria in ten states: Alabama, Indiana, Kansas, Kentucky, Nevada, New Hampshire, Ohio, Oregon, Texas, and Utah. Other forms were necessary in these states, although the Five Wishes document could still serve as a guide for family and physicians.

Pro-Life Alternative to Living Wills

The National Right to Life Committee (NRLC) opposes active and passive euthanasia and offers an alternative to the standard living will. Called the Will to Live (http://www.nrlc.org/euthanasia/willtolive/index.html), it does not consider artificial nutrition and hydration as forms of medical treatment, but as basic necessities for the preservation of life.

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

Even though living wills provide specific directions about medical treatment, most apply only to limited circumstances, such as terminal illness or permanent coma. Living wills cannot address every possible future medical situation. Many medical treatments require decision making, such as surgical procedures, diagnostic tests, blood transfusion, the use of antibiotics, radiation therapy, and chemotherapy.

A durable power of attorney for health care, also called a medical power of attorney, addresses this need. It is the other part of an advance directive and is generally more flexible than a living will. It allows individuals to appoint proxies (agents) who will use their judgment to respond to unforeseen situations based on their knowledge of the patient and the patient's values and beliefs. (See Table 7.2.) The role of this agent or proxy begins as soon as the physician certifies that a patient is incompetent to make his or her own decisions.

Because there is no uniform advance directive statute nationally, the rights of health-care agents vary across states. Limits on agents' powers in each state and the District of Columbia as of October 2007 are shown in Table 7.1.

In the Absence of a Durable Power of Attorney for Health Care

Physicians usually involve family members in medical decisions when the patient has not designated a health-care proxy in advance. This person is called a surrogate. Many states have surrogate consent laws for this purpose. Some have laws that designate the order in which family members may assume the role of surrogate decision maker. For example, the spouse may be the prime surrogate, followed by an adult child, then the patient's parent, and so on.

Petersen indicates that in 2007 thirty-one states specified a decision-making standard for surrogates: either a substituted judgment standard, a best interests standard, or a combination of the two. A substituted judgment standard requires the surrogate to do what the patient would do in the situation were the patient competent. A best interests standard requires the surrogate to weigh health-care options for the patient and then decide what is in the patient's best interest.

ADDITIONAL INSTRUCTIONS IN ADVANCE DIRECTIVES

Artificial Nutrition and Hydration

Some living wills contain a provision for the withdrawal of nutrition and hydration. (See Table 7.2.) Artificial nutrition and hydration (ANH) are legally considered medical treatments and may, therefore, be refused. However, this form of treatment remains controversial in the right-to-die issue because food and liquid are the most basic forms of life sustenance, yet they are not usually needed by dying people and may even make them less comfortable. The unresolved problem is mirrored by the fact that not all states' advance directive statutes (laws) address this issue, and the ones that do show no consensus.

Petersen explains that one crux of the ANH controversy is the comfort carepain relief mandate. She notes that in 2007 thirty-one states addressed comfort care and pain relief associated with life-sustaining procedures, including ANH. Thus, if ANH is seen as a procedure that comforts the dying patient or helps relieve pain, then it must be given regardless of what a healthcare proxy or surrogate wants. Two states, however, prohibit ANH if it is expected to cause pain. Again, the proxy or surrogate would have no say. Complicating

the matter even more, Petersen reports that six states require that ANH would have to be deemed to have no impact on the patient's illness or to potentially harm the patient before the agent or surrogate would be allowed to forgo ANH.

Relief from Pain

Some living wills also enable an individual to give instructions about the management of pain. Even though a number of studies show that pain is not the primary motivation for assisted suicide requests, many people

have seen family and friends suffer painful deaths, and they fear the same fate. Experts advise that advance directives should expressly indicate desires for pain control and comfort care, even when individuals have chosen to forgo life-sustaining treatments.

In the past, patient pain may not have been adequately treated because medical professionals lacked training or feared overprescribing pain medications. A variety of legislative and education initiatives by states and medical professional societies have dramatically improved pain management. The Federation of State Medical Boards has developed guidelines to help physicians use medication to manage pain safely and effectively. Special instruction in pain management for patients with life-limiting illnesses is now offered in many medical and nursing schools.

COMBINED ADVANCE DIRECTIVE LAWS

Some states have separate laws that govern living wills and durable powers of attorney for health care. The National Conference of State Legislatures (NCSL) and the Center to Improve Care of the Dying (CICD) believe that rather than having separate laws for these two documents, states should combine right-to-die laws into a single

statute. By October 2007 twenty-five states had done just that. (See Table 7.1.) Of these states, Alabama, Alaska, Delaware, Hawaii, Maine, Mississippi, and New Mexico had also adopted the UHCDA as a model.

The UHCDA has been recommended by the NCSL and the CICD as a model law because it is simple and comprehensive. It contains provisions governing living wills and durable powers of attorney, as well as limits on an agent's powers. The law permits instructions regarding one's future health care to be either written or oral. States using the law as a model may adopt the optional combined directive, which does not require witnesses to the document. It further enables individuals to express their preferences about organ donation and to designate a primary physician. (See Table 7.2.)

Along with showing the type of health-care power of attorney and combined advance directive legislation in each state, Table 7.1 shows other related information, including the comity provision. If a state has a comity provision, that means it has legislation specifically requiring that another state's living will, health-care power of attorney, or both, be honored within its borders.

IMPORTANCE OF COMMUNICATION FOR END-OF-LIFE CARE

The consideration of an advance directive should be the start of an ongoing discussion among the individual, family members, and the family doctor about end-of-life health care. Discussions about one's advance directive do not have to be limited to treatment preferences and medical circumstances. Sometimes knowing things such as the patient's religious beliefs and values can be important for the proxy when speaking for the patient's interests. The Center for Health Law and Ethics at the University of New Mexico has devised a values history form (http://hsc.unm.edu/ethics/pdf/Values_History.doc) to help people examine their attitudes about issues related to illness, health care, and dying. It may serve as a valuable tool to guide discussions between the patient and the proxy, as well as among family members.

When preparing an advance directive, it is vitally important for the family and proxy to fully understand the care and measures that are wanted. Even when a patient has a living will calling for no heroic measures, if the family demands such medical intervention, it is likely that the hospital or doctor will comply with the family's wishes rather than risk a lawsuit.

In Discussions by Elders and Adult Children about End-of-Life Preparation and Preferences (Preventing Chronic Disease: Public Health Research, Practice, and Policy, vol. 5, no. 1, January 2008, http://www.cdc.gov/pcd/issues/2008/jan/07_0141.htm), Anne P. Glass and Lusine Nahapetyan conducted in-depth interviews with older adults about their end-of-life decisions and with younger adults about their parents' end-of-life decisions to determine factors that helped and hindered discussions among family members regarding end-of-life preparation and preferences. Of the older adult participants in the study, just over half had discussed these topics with their adult children. Of the younger participants, two-thirds had discussed these topics with their parents.

Glass and Nahapetyan determine that fear of death, avoiding talking about death, trust in others to make decisions, family dynamics, and uncertainty about preferences were factors that impeded family discussions about end-of-life preparation and preferences. Factors that facilitated discussion were an acceptance of death, experience with death, religion, or spirituality, and a desire to help the family. The researchers also explain that approaching the topic in a casual manner helped families. An indispensable strategy to avoid confusion and argument over what parents said or wanted, and to avoid the need to get the family together in one place at one time, was for parents to write down their end-of-life preferences.

THE PATIENT SELF-DETERMINATION ACT

In 1990 Congress enacted the Patient Self-Determination Act (PSDA) as part of the Omnibus Budget Reconciliation Act of 1990. This legislation was intended to reinforce individuals' constitutional right to determine their final health care.

The PSDA took effect on December 1, 1991. It requires most health-care institutions, on admission, to provide patients with a summary of their health-care decision-making rights and to ask them if they have an advance directive. Health-care institutions must also inform the patient of their facility's policies with respect to honoring advance directives. The PSDA requires health-care providers to educate their staff and the community about advance directives. It also prohibits hospital personnel from discriminating against patients based on whether they have an advance directive, and patients are informed that having an advance directive is not a prerequisite to receiving medical care.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Advance Directives." Death and Dying: End-of-Life Controversies. 2009. Encyclopedia.com. 29 May. 2016 <http://www.encyclopedia.com>.

"Advance Directives." Death and Dying: End-of-Life Controversies. 2009. Encyclopedia.com. (May 29, 2016). http://www.encyclopedia.com/doc/1G2-3232300013.html

"Advance Directives." Death and Dying: End-of-Life Controversies. 2009. Retrieved May 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3232300013.html

Advance Directives

Advance Directives

An advance directive is a statement that declares what kind of lifesaving medical treatment a patient wants after he or she has become incompetent or unable to communicate to medical personnel. Advance directives, which are recognized in every state, are a response to the increasing ability of physicians since the 1950s to delay death through an array of medical technology, such as respirators, feeding tubes, and artificial hydration. This ability to prolong life has led to the need for doctors, patients, and patients' families to make decisions as to whether such technology should be used, especially in those situations when the patient is either near death, comatose, or severely and chronically ill.

Advance directives are an outgrowth of the doctrine of "informed consent." This doctrine, established by the courts, holds that patients, and not their physicians, are responsible for making the final decision about what medical care they want after being provided with complete and accurate medical information. It represents a shift from an earlier more paternalistic model of the doctor-patient relationship in which the physician made most medical decisions. The doctrine is based on the principles of autonomy and self-determination, which recognize the right of individuals to control their own bodies. An advance directive is a way of recognizing this right prospectively by providing instructions in advance on what the patient would want after he or she is no longer able to communicate his or her decision.

Types of Advance Directives

There are two forms of advance directives: living wills and health care powers of attorney. A living will, so named because it takes effect while the person is still alive, is a written statement expressing whether or not a person wants to accept life-sustaining medical treatment and under what conditions. For example, a living will may state that a person wants a ventilator, but not a feeding tube, in the event of an irreversible or terminal illness. Many states also have Do Not Resuscitate laws, a narrowly tailored type of living will, that allows patients to indicate that they do not want cardiopulmonary resuscitation if they suffer cardiac arrest. These laws also protect health providers from civil or criminal liability when honoring advance directives.

A health care power of attorney, also known as a durable power of attorney or a proxy, provides for someone else, usually a family member or close friend, to make decisions for the patient when he or she is unable. It is broader than a living will because it includes all medical decisions, not just those pertaining to life-sustaining medical treatment. It does not require that the person be terminally ill or in a vegetative state before it is triggered. However, unlike a living will, a proxy may not contain specific instructions on a patient's willingness to accept certain life-sustaining treatment. Instead it is left up to the appointed family member or close friend to determine what the patient would want, based on what the patient has said in the past or the patient's overall life philosophy. For this reason, it is helpful to combine living wills and a power of attorney in one document. Every state has laws that provide for living wills, health care proxies, or both. These laws are commonly referred to as Natural Death Acts.

Advance directives do not have to be in writing and can include oral statements made to family, friends, and doctors before the patient became unable to make a decision regarding his or her medical care. Most states require that evidence concerning these statements be clear and convincing. In other words, they should not be "casual remarks" but "solemn pronouncements" that specifically indicate what type of life-sustaining treatments the patient wants, and under what conditions. Because such statements are open to interpretation, and past remarks may not be indicative of what a patient presently wants, oral advance directives are often not effective.

If a patient has failed to execute a living will or health care proxy, many states provide for the designation of a surrogate decision maker (usually a family member). However, the situations when a surrogate may be appointed are limited. Depending upon the state, it may only apply when the individual has a terminal illness or is permanently unconscious, or to certain types of treatment, such as cardiopulmonary resuscitation. The surrogate must consider the wishes of the patient, if known, and his or her religious views, values, and morals.

Advance directives may not apply in an emergency situation, especially those that occur outside of a hospital. Emergency medical services (EMS) personnel are generally required to keep patients alive. Some states allow EMS personnel not to resuscitate patients who are certified as terminal and have an identifier, such as a bracelet.

Although the law encourages people to complete advance directives, most do not. It is estimated that only between 10 to 20 percent of the population have advance directives. There are several reasons for this. Young people think that they do not need one, even though the most well-known cases involving the right to dieKaren Ann Quinlan and Nancy Cruzaninvolved young women in their twenties in persistent vegetative states. For old and young alike, bringing up the issue with potential surrogates, such as family and friends, can be uncomfortable and upsetting. Some individuals, especially those from traditionally disenfranchised populations such as the poor and minority groups, may fear that an advance directive would be used to limit other types of medical care.

Another primary reason why advance directives are not completed is that oftentimes patients wait for their physicians to broach the subject, rather than initiating it themselves. In a 1991 Harvard study four hundred outpatients of thirty primary care physicians and 102 members of the general public were interviewed to determine the perceived barriers to executing an advance directive. The most frequently cited reason for not completing an advance directive was the failure of physicians to ask about it. There are several reasons why physicians often do not initiate such discussions, including a belief that such directives are unnecessary (especially for younger patients) and lack of specific knowledge on how to draft one. Also, insurance companies do not reimburse physicians for their time spent discussing advance directives.

Limitations of Advance Directives

Even when advance directives are completed, they may not be complied with. One reason is that they may not be available when needed. In a self-administered questionnaire distributed to 200 outpatients in 1993, half of the patients who had executed an advance directive kept the only copy locked in a safe-deposit box. Hospitals may also fail to include a copy of the patient's advance directive in his or her chart. Physicians may be unaware of a patient's advance directive even when the document is placed in the patient's chart.

Another obstacle to the implementation of advance directives is that the documents themselves may contain ambiguities or terms open to interpretation, making it difficult to apply. For example, some living wills may simply state that the patient does not want heroic medical measures to be undertaken if the condition is terminal. But the term "heroic measures" can mean different things to different people. Artificial nutrition and hydration may be considered heroic to some, but not to others. Other living wills (and some state laws) require that a patient be terminally ill before it is activated. But physicians may disagree over the definition of terminally ill ; for some it means imminent death and for others it means an irreversible condition that will ultimately result in death. And even a clearly written advance directive may no longer represent a patient's wishes as death becomes imminent.

Health care proxies also have limitations. They often contain no guidance for the appointed person on the patient's views toward life-sustaining medical interventions. Decisions may therefore be based on what the proxy wants and not the patient. Because the proxy is usually a relative or close friend, this person's strong connections to the patient, and own feelings and beliefs, may influence the decisions made. This is especially true when it comes to withholding certain controversial treatments, such as a feeding tube. Figuring out what the patient would want can also be difficult. Past statements may not be indicative of present desires because a grave illness can alter views held when healthy.

Even when a patient's preference is clear, as expressed by the surrogate or within the document itself, physicians may not always comply with the patient's wishes. One of the largest studies of clinical practices at the end of life, the Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatment (the Support study) involved 4,805 patients in advanced stages of serious illnesses in five teaching hospitals located throughout the United States. The study found that physicians often ignore advance directives. This was true even where, as in the Support study, efforts were made to improve physician-patient communication on end-of-life decisions. The reasons are several, including unclear advance directives and pressure exerted by family members to ignore directives. Physicians may also fear that they may be sued for withholding life supports, although no such lawsuits have ever been successful.

Advance directives also pose a direct challenge to a physician's medical judgment. While the paternalistic model of the physician-patient relationship has been supplanted by one based on shared decision making and informed consent, remnants of the old model still remain. Physicians who see their primary goal as saving lives may also be less willing to yield to the patient's judgment, especially when it is difficult to predict with certainty whether life supports will enhance the patient's life or render dying more painful.

Improving Advance Directives

Attempts to address some of the deficiencies in advance directives have taken several tracks. One approach is to make advance directives more practical and easier to interpret and apply. One suggestion is to include specific medical scenarios and more detailed treatments (although too much specificity can leave out the present scenario). Partnership for Caring, an advocacy group located in Washington D.C., suggests including whether or not artificial nutrition and hydration should be provided being that these types of treatment often create disagreements. Another suggestion is to include a values history, a detailed rendition of the patient's religious, spiritual, and moral beliefs, which can provide guidance and clarification of the reasons for not choosing life supports. Still another approach recommended by the American Medical Association is the inclusion of general treatment goals, for example "restoring the ability to communicate, " that can be used to assess the appropriateness of a given intervention.

Other approaches to increase compliance with advance directives have focused on the behavior of physicians. The medical profession has been criticized for not adequately preparing physicians for dealing with death. Professional medical groups, such as the American Medical Association, have become more involved in preparing physicians by issuing guidelines and reports. A more extreme approach is advocated by some who have proposed imposing sanctions, either professional disciplinary action or penalties and fines, for ignoring an advance directive. Although some state laws provide for such sanctions, they are rarely if ever applied. Legal actions to recover monetary damages from the physician or health care provider for ignoring advance directives have also been initiated.

Other approaches include making the public and medical providers more aware of advance directives, and making them more accessible. A 1990 federal law, the Patient Self-Determination Act, requires hospitals, health maintenance organizations, and others that participate in Medicaid or Medicare to tell patients their rights under state laws to make end-of-life medical decisions. It also requires that advance directives be maintained in patients' charts. An important public education component of the law requires health care providers to educate their staff and the public about advance directives. Several states have tried more experimental approaches, including allowing advance directives to be displayed on driver's licenses and identification cards.

Advance directives are a relatively new phenomenon in medical care, with the first laws providing for them passed in the latter part of the twentieth century. Although there is widespread public support, that support is often more theoretical than practical. Changes in medical practices, the public's awareness, and the documents themselves have been proposed in order to encourage their use.

See also: Bioethics; Cruzan, Nancy; End-of-Life Issues; Informed Consent; Living Will; Natural Death Acts; Quinlan, Karen Ann

Bibliography

Cantor, Norman L. "Advance Directive Instruments for End-of-Life and Health Care Decision Making." Psychology, Public Policy and Law 4 (1998):629652.

Danis, Marion, Leslie I. Southerland, Joanne M. Garrett, Janet L. Smith, Frank Hielema, C. Glenn Pickard, David M. Egner, and Donald L. Patrick. "A Prospective Study of Advance Directives for Life-Sustaining Care." New England Journal of Medicine 324 (1991):882888.

Emanuel, Linda L., Michael J. Barry, John D. Stoeckle, Lucy M. Ettelson, and Ezekiel J. Emanual. "Advance Directives for Medical CareA Case for Greater Use." New England Journal of Medicine 324 (1991):889895.

Furrow, Barry R., Thomas L. Greaney, Sandra H. Johnson, Timothy Stoltzfus Jost, and Robert L. Schwartz. Health Law. St. Paul, MN: West Publishing Company, 1995.

Koch, Tom. "Life Quality vs. the Quality of Life: Assumptions Underlying Prospective Quality of Life Instruments in Health Care Planning." Social Sciences and Medicine 51 (2000):419427.

Lens, Vicki, and Daniel Pollack. "Advance Directives: Legal Remedies and Psychosocial Interventions." Death Studies 24 (2000):377399.

LoBuono, Charlotte. "A Detailed Examination of Advance Directives." Patient Care 34 (2000):92108.

Loewy, Erich H. "Ethical Considerations in Executing and Implementing Advance Directives." Archives of Internal Medicine 158 (1998):321324.

Rich, Ben A. "Advance Directives: The Next Generation." The Journal of Legal Medicine 19 (1998):131.

Sabatino, Charles P. "Ten Legal Myths about Advance Directives." Clearinghouse Review 28 (October 1994):653656.

Sass, Hans-Martin, Robert M. Veatch, and Rihito Kimura, eds. Advance Directives and Surrogate Decision Making in Health Care: United States, Germany, and Japan. Baltimore: Johns Hopkins University Press, 1998.

Silveira, Maria J., Albert DiPiero, Martha S. Gerrity, and Chris Feudtner. "Patients' Knowledge of Options at the End of Life: Ignorance in the Face of Death." Journal of the American Medical Association 284 (2000):24832488.

Teno, Joan, et al. "Advance Directives for Seriously Ill Hospitalized Patients: Effectiveness with the Patient Self-Determination Act and the Support Intervention." Journal of the American Geriatrics Society 45 (1995):500507.

VICKI LENS

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

LENS, VICKI. "Advance Directives." Macmillan Encyclopedia of Death and Dying. 2003. Encyclopedia.com. 29 May. 2016 <http://www.encyclopedia.com>.

LENS, VICKI. "Advance Directives." Macmillan Encyclopedia of Death and Dying. 2003. Encyclopedia.com. (May 29, 2016). http://www.encyclopedia.com/doc/1G2-3407200012.html

LENS, VICKI. "Advance Directives." Macmillan Encyclopedia of Death and Dying. 2003. Retrieved May 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3407200012.html

Advance Directives

Advance directives

Definition

An advance directive is a written document in which people clearly specify how medical decisions affecting them are to be made if they are unable to make them, or to authorize a specific person to make such decisions for them.

Description

Advance directives are recognized in most industrialized countries of the world. In the United States, by law, the creation of an advance directive is the right of all competent adults. The goal of this legislation is to empower all health care consumers to make their own judgments regarding medical decision-making, to approve of potential treatment they believe they would want, and to refuse care they do not perceive as being in their best interest. These directives are generally divided into living wills or durable powers of attorney.

Federal law requires that all health care providers (health maintenance organizations, or HMOs, skilled nursing care facilities, hospices, home health care providers, and hospitals) make information regarding advance directives available to all people in their care. Many states require that two people witness such advance directives.

Living wills

Living wills go into effect while the individual is still living, but is unable to communicate his/her wishes regarding care. Traditionally, a living will has specified the individual's wishes concerning procedures that would sustain life if he/she were terminally ill. Newer advance directives do not limit such preferences to terminal illness but instead go into effect whenever the individual is unable to speak for him/herself.

There are several ways of preparing a living will. Sometimes a preprinted form is provided, or people may create their own form, or may simply write down their wishes. Though all 50 states and the District of Columbia recognize the validity of advance directives, each state's laws have differences as to whether one or all of these types of preparation of the document are legal and binding in that state. It is recommended that people speak to their attorney or physician to ensure that their wishes are carried out.

Durable power of attorney for health care

A durable power of attorney for health care is the second type of advance directive. This is a signed, dated, and witnessed document that authorizes a designated person (usually a family member or close friend) to act as an agent, or proxy. This empowers the proxy to make medical decisions for a person when the person is deemed unable to make these decisions him/herself. Such a power of attorney frequently includes the person's stated preferences in regard to treatment. Several states do not allow any of the following people to act as a person's proxy:

  • the person's physician, or other health care provider
  • the staff of health care facilities that is providing the person's care
  • guardians (often called conservators) of the person's financial affairs
  • employees of federal agencies financially responsible for a person's care
  • any person that serves as agent or proxy for 10 people or more

As in the case of living wills, regulations regarding such powers of attorney vary from state to state. Some states provide printed forms, and require witnesses, while other states do not.

Causes

As medical advances provide greater than ever means of extending life, it becomes increasingly important for people to evaluate which of the available means they would wish used. If this is not done, people run the risk of having health care providers make critical decisions regarding their care. The absence of advance directive information can also create dilemmas and increased stress for loved ones. Some of the terms describing now-routine medical interventions that can maintain life under dire circumstances include:

  • cardiopulmonary resuscitation (CPR), the use of chest compressions and/or mouth-to-mouth resuscitation to restart heart beat and/or respirations
  • ventilators or respirators that physically deliver oxygen via a tube into the windpipe when the lungs are unable to work on their own
  • Life-sustaining care encompasses the use of machinery or equipment that prolongs life by keeping the body functioning. Examples of life-sustaining care include hyperalimentation, tube feedings, and kidney dialysis.

In contrast, life-enhancing care, sometimes referred to as Care and Comfort Only, involves the provision of high quality, but non-heroic medical care until death occurs naturally. Important examples of life-enhancing care include administration and monitoring of medications, carrying out other measures to control pain, comfort measures such as bathing and massage, and offering food and fluids.

Special concerns

Though specifics vary, all states have laws allowing people to spell out their health care wishes for a time when they might be unable to speak for themselves. But, as noted, there is a potential for disparity in how advance directives are interpreted. In most hospitals, an ethics committee is available to assist and support both patients and families faced with decisions regarding medical care. In 1995, the American Association of Retired Persons (AARP), with the help of the American Bar Association (ABA) and the American Medical Association (AMA), produced a combined living will and power of attorney for health care document that provides very specific and detailed statements of a person's wishes. Further information regarding the laws in individual states can be obtained from the AARP, ABA, or AMA.

The AARP recommends that those individuals considering making an advance directive address the following issues:

  • What the person's goals for medical treatment are: Should treatment be used to sustain life, regardless of the quality of that life?
  • Who should act as the person's proxy or agent? It is important for the person making an advance directive to actually speak with this designated person and make his/her wishes known.
  • Though there is no formula for specificity, the AARP recommends that instructions be made as clear and specific as possible, but should not restrict the proxy from making informed decisions at the time that cannot be anticipated in advance.
  • To ensure that an advance directive is carried out, copies of it should be given to a person's physician, proxy, family, or any other interested party.

Resources

BOOKS

Clayman, Charles A., M.D. American Medical Association Home Medical Encyclopedia. New York: Random House, 1989.

Doukas, David J., and William Reichel. Planning for Uncertainty, A Guide to Living Wills and Other Advance Directives for Health Care. Baltimore, MD: Johns Hopkins University Press, 1993.

ORGANIZATIONS

Choices In Dying, Inc., 200 Varick Street, New York, New York10014-4810. (800) 989-WILL.

American Association of Retired Persons Legal Counsel for the Elderly., P.O. Box 96474, Washington, DC, 20090-6474.

American Medical Association. <http://www.ama-assn.org>.

American Bar Association. <http://www.abanet.org>.

Center for Healthy Aging. <http://www.careproject.net>.

Joan Schonbeck, R.N.

KEY TERMS

Competent

Duly qualified; having sufficient ability or authority; possessing all the requirements of law.

Dialysis

A technique used to remove waste products from the blood and excess fluid from the body as a treatment for kidney failure.

Hyperalimentation

The administration of a nutrient solution into a large, central vein near the heart. It is often used supplementary to eating, but can provide complete nourishment.

Tube feeding

Administration of nourishment, in nutritionally complete solutions, via tube into the stomach or intestines. Tubes can be either nasogastric, or inserted through the nose into the stomach via the esophagus, or surgically implanted directly into the stomach. These are usually used to sustain life when a person is unable to eat or take fluids by mouth.

QUESTIONS TO ASK THE DOCTOR

  • What is the prognosis for my type of cancer?
  • What are the possible treatments?
  • What are the side effects of these treatments?
  • What are the laws in my state regarding living wills and durable powers of attorney for health care?
  • How can I ensure that my wishes will be carried out regarding advance directives?

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

Schonbeck, Joan. "Advance Directives." Gale Encyclopedia of Cancer. 2002. Encyclopedia.com. 29 May. 2016 <http://www.encyclopedia.com>.

Schonbeck, Joan. "Advance Directives." Gale Encyclopedia of Cancer. 2002. Encyclopedia.com. (May 29, 2016). http://www.encyclopedia.com/doc/1G2-3405200021.html

Schonbeck, Joan. "Advance Directives." Gale Encyclopedia of Cancer. 2002. Retrieved May 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3405200021.html

Advance directives

Advance directives

Definition

An advance directive is a written document in which people clearly specify how medical decisions affecting them are to be made if they are unable to make them, or to authorize a specific person to make such decisions for them. These documents are sometimes called "living wills." Psychiatric advance directives serve the same purpose as general medical advance directives, but are written by mental health consumers as a set of directions for others to follow, made in advance of an injury, psychiatric illness, or crisis.

Description

Many consumers of mental health services know which treatments work best for them and, over the past several years, their opinions have become increasingly valued by those providing services. However, when a mental health consumer becomes unable to make decisions or to give informed consent for treatments offered, others (including family, friends, judges, or care providers) make the decisions for the individual in crisis. In these kinds of crisis situations, advance directives may be beneficial for the person receiving care, because the advance directive is a legal document that may protect him or her from unwanted treatment.

Psychiatric advance directives usually fall into two categories: instruction directives and agent-driven directives.

Instruction directives

An instruction directive is a written document that specifies which treatments an individual does and does not want, in the case that that individual becomes unable to make decisions about his or her care. These documents may indicate the affected individual's preferences about many aspects of treatment, including:

  • people who should be contacted at a time of psychiatric crisis
  • activities that reduce (and heighten) anxiety for the individual
  • effective alternatives to restraint or seclusion for the individual
  • acceptable and unacceptable medications and dosages
  • other interventions that might be considered during a time of crisis (such as electroconvulsive therapy )

Agent-driven directives

An agent-driven directive may also be called a durable power of attorney. This directive is a signed, dated, and witnessed document that authorizes a designated person (usually a family member or close friend) to act as an agent or proxy. This empowers the proxy to make medical decisions for a person when the person is deemed unable to make these decisions him/herself. Such a power of attorney frequently includes the person's stated preferences in regard to treatment. Several states do not allow any of the following people to act as a person's proxy:

  • the person's physician, or other health care provider
  • the staff of health care facilities that is providing the person's care
  • guardians (often called conservators) of the person's financial affairs
  • employees of federal agencies financially responsible for a person's care
  • any person that serves as agent or proxy for 10 people or more. The person who is to act as the proxy should be familiar with the individual's expressed wishes about care, and should understand how to work within the mental health system.

These two distinct documents may, in some cases, be combined into one form.

Special concerns

In the United States, each state has laws about general medical advance directives and how those laws apply to psychiatric advance directives; a few states exclude psychiatric advance directives from their statutes. The specific form the advance directive should take, the language it should use, and the number of witnesses required to make the document legal and binding vary from state to state. In general, according to the National Mental Health Association, physicians and other health care professionals are expected to comply with the instructions of an advance directive, as long as those instructions are within the guidelines of accepted medical practice. Currently, however, few laws require providers to comply with an advance directive. It is recommended that people speak to their attorney or physician to ensure that their wishes are communicated in a form that is legally acceptable in their state.

Resources

BOOKS

Clayman, Charles A., M.D. American Medical Association Home Medical Encyclopedia. New York: Random House, 1989.

Doukas, David J., and William Reichel. Planning for Uncertainty, A Guide to Living Wills and Other Advance Directives for Health Care. Baltimore, MD: Johns Hopkins University Press, 1993.

National Mental Health Association. Psychiatric Advance Directives Issue Summary.

ORGANIZATIONS

Advance Directive Training Project. Resource Center, Inc. Albany, NY. (518) 463-9242. <www.peer-resource.org>.

American Psychiatric Association. 1400 K Street NW, Washington, DC 20005. Telephone: (888) 357-7924. Fax (202) 682-6850. Web site: <http://www.psych.org/>.

Judge David L. Bazelon Center for Mental Health Law. Washington, D.C. (202) 467-5730. <www.bazelon.org/advdir.html>.

National Association of Protection and Advocacy Systems. Washington D.C. (202) 408-9514. <www.protectionandadvocacy.com>.

National Mental Health Association. (Produces a Psychiatric Advance Directives Toolkit ). (800) 969-6642.

Joan Schonbeck, R.N.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

Schonbeck, Joan. "Advance directives." Gale Encyclopedia of Mental Disorders. 2003. Encyclopedia.com. 29 May. 2016 <http://www.encyclopedia.com>.

Schonbeck, Joan. "Advance directives." Gale Encyclopedia of Mental Disorders. 2003. Encyclopedia.com. (May 29, 2016). http://www.encyclopedia.com/doc/1G2-3405700017.html

Schonbeck, Joan. "Advance directives." Gale Encyclopedia of Mental Disorders. 2003. Retrieved May 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3405700017.html

Facts and information from other sites