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What is an Advance Directive?
What You Need to Know

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Collen Clark Published by Collen Clark

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Even if you are currently healthy, making arrangements for your healthcare is a crucial step toward ensuring you receive the medical care you desire if you cannot communicate your needs and family members are making medical decisions on your behalf.

I have assisted several clients in developing their advance directive plans and have compiled all the information into this article. 

I will explain the kinds of choices that might be required in these circumstances and all the decisions you might want to consider now to be ready later.

Quick Summary

  • A living will, a power of attorney, and instructions for medical care are all included in an advance directive.
  • Advance directives only affect decisions relating to medical care; they have no impact on choices regarding money or other material things.
  • The person you choose to act as your healthcare agent is very important. Not all circumstances can be predicted, even if you have other legal documents pertaining to your care.

What Is an Advance Directive?

A person pointing to a bookAn advance directive, also known as a "living will," is a written legal document that instructs your healthcare providers as to who should make medical decisions on your behalf if you cannot do so. 

If you become unconscious or unable to communicate your wishes, this information will be crucial [1].

Many healthcare decisions may be made in advance thanks to state and federal laws, ensuring that your preferences are respected even if you are unable to communicate them.

As a responsible adult, you have the authority to decide whether to consent to, refuse, or stop receiving medical treatment.

Advance directives and similar documents can help ensure that your loved ones and medical team respect your wishes. 

Although it may be uncomfortable to consider these scenarios, planning ahead gives you and your family members peace of mind and reduces confusion during a trying time.

Advance directives only apply to decisions regarding medical care; they have no bearing on financial or material decisions. There are variations in the laws governing advance directives from state to state.

Examples of Advance Care Planning Decisions

A doctor talking to a patient inside the hospital

When using emergency treatments to prolong your life, decisions sometimes need to be made. Doctors can use many artificial or mechanical methods to try and accomplish this.

At this point, decisions could be made regarding:

  • CPR (cardiopulmonary resuscitation)
  • Use of a ventilator
  • Use of artificial nutrition, such as feeding tubes and artificial hydration (IV, or intravenous, fluids)
  • Providing comfort care, such as managing breathlessness; restricting medical testing; offering psychological and spiritual support; and administering pain, nausea, or constipation medication.

Who Makes an Advance Decision?

Two doctors talking to a patient in a hospital bed

An advance decision is made by you as long as you are mentally capable of making such choices. 

I would suggest you choose in advance with the assistance of a clinician.

In the future, if you choose to forego receiving life-sustaining care, you must decide in advance, and you must:

  • Put it in writing
  • Have it signed by you
  • Have a witness's signature

You must be clear in your advance decision if you wish to refuse life-sustaining treatments in situations where you could pass away. Treatment meant to prolong life is also referred to as life-saving care.

Talking to your healthcare professionals or healthcare team about the potential future life-sustaining treatment you might receive and the consequences of declining them can be helpful.

What Exactly Does an Advance Directive Contain?

An advance directive contains a living will, power of attorney, and health care instructions. These sections allow for the specification of specific instructions for medical care or the designation of additional decision-makers as necessary. 

They consist of:

1. Living Will

A person signing a paperA living will is a written statement of your wishes regarding medical care in the event that you are terminally ill or in a persistent vegetative state. A living will instruct medical professionals to stop or avoid specific medical or surgical procedures [2].

A terminal condition is an advanced, incurable medical condition that is irreversible and caused by an illness, injury, or disease.

In the attending physician's judgment, cause death with a high degree of medical certainty regardless of the continued administration of life-sustaining treatment.

In your living will, you should cover a range of potential decisions regarding your final medical care.

If you are worried about the following medical decisions, consult your doctor:

  • Cardiopulmonary resuscitation (CPR)
  • Mechanical ventilation
  • Tube feeding
  • Dialysis and breathing machines
  • Antibiotics or antiviral medications
  • Comfort care (palliative care)
  • Organ and tissue donation
  • Donating your body

2. Power of Attorney

An agent who can make healthcare decisions on your behalf if you cannot do so yourself can be named in writing through the use of a durable power of attorney for healthcare decisions. 

"Although having both is desirable, a health care power of attorney usually is preferable to a living will because it can apply to all medical decisions for the person lacking capacity, and it allows the person chosen as the surrogate decision maker to respond to changing medical information and circumstances."
-Charles Sabatino, JD, American Bar Association

You can specify whether an agent's appointment takes place immediately or when you lose the ability to make decisions for yourself.

Depending on where you live, the person you select to make decisions for you may be referred to as:

  • Healthcare agent
  • Healthcare proxy
  • Healthcare surrogate
  • Healthcare representative
  • Healthcare attorney-in-fact
  • Patient advocate

It's crucial to pick the right person to serve as your healthcare agent. Even if you have other legal documents pertaining to your care, not all circumstances can be predicted, and in some cases, someone will need to determine your healthcare wishes.

Choose someone who satisfies the following requirements:

  • A person signing paperwork while another person pointsMeets the requirements set forth by your state for health agents.
  • Is not a member of your medical care team or your doctor.
  • Is able and willing to speak with you about medical issues and issues relating to death.
  • Can be relied upon to make choices that are consistent with your preferences and values.
  • Can be relied upon to represent you if there is a dispute over your care.

The person you specify could be your spouse, another family member, a friend, or a fellow believer. If the person you selected cannot perform the role, you may also select one or more backup candidates.

3. Healthcare Proxy

A set of healthcare instructions is another kind of written advance directive that can be used either on its own or in conjunction with the designation of a healthcare agent. 

If you have a severe terminal illness, are in a persistent vegetative state, or have an end-stage condition, you can specify in your healthcare instructions what treatment you want or do not want.

How to Create Advance Directives?

To create advance directives, you must first fill out an advance healthcare form, have it signed by two witnesses who are not your power of attorney, and then give a copy to your doctor and power of attorney.

If necessary, discuss with your healthcare providers the possibility of converting your advance directive into advance care planning documents such as POLST or MOLST.

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Is an Advance Decision Legally Binding?

An advance decision is legally binding as long as it applies to the circumstance and is in compliance with the Mental Capacity Act.

How Do Advance Directives Help?

Advance directives help by providing the medical and legal details about your treatment preferences to your health and social care team for you to get what you want when you are in an unresponsive state.

Does an Advance Decision Need to Be Signed and Witnessed?

Yes, an advance decision needs to be signed and witnessed, especially if you're refusing to receive treatment that could prolong your life. In this case, the advance decision must be recorded in writing and witnessed by both of you. 

What Are the Most Common 3 Types of Advance Directives?

The 3 most common types of advance directives are living will, power of attorney, and healthcare proxy.

Who Should See Your Advance Directives?

Your family, power of attorney, healthcare providers, and social care professionals should see your advance directives.

Do You Want To Create Advance Directives?

Healthcare advance planning is usually simple; however, you or your agent(s) could have legal questions. 

Contact the Schmidt & Clark, LLP law firm for a free consultation session with a team of our best advance directive attorneys that will help you make your own advance directive and answer any legal questions you have.