An advance medical directive is a legal document that a person uses to make arrangements for their healthcare decisions. They offer direction to healthcare providers if a person cannot make and communicate decisions for themselves.
If a person becomes incapacitated and cannot make or communicate decisions regarding their health care, the written statements contained in an advance directive can communicate their wishes. Advance medical directives are sometimes referred to as “healthcare directives.
Generally, there are two main types of advance medical directives: the “living will” and the “durable power of attorney.” These are discussed in detail below. However, other documents may serve some of the same functions as advance medical directives. These may include a healthcare proxy and a supported decision-making agreement form.
What Are the Different Forms of Advance Medical Directives?
As mentioned above, living wills and durable powers of attorney are the two types of advance medical directives used most often. However, neither of these two types of medical directives may be the best option for every person. Below is a discussion of two additional types that a person can use to make arrangements for healthcare decisions when they become incapacitated.
What Is a Living Will?
The most common type of advance medical directive is the living will. A living will is a signed and witnessed document in which the person who makes it directs others on how to manage their medical care. It may also include instructions on medical treatments the person does, and in some cases does not, want to be used to preserve their life.
A living will does not delegate any power or authority to make healthcare decisions to another person. Rather, it communicates a person’s own wishes regarding their medical care directly to healthcare providers.
The provisions most commonly included in a living will are the following:
- Life-sustaining Measures: Orders to use or not use life-sustaining measures when a person is terminally incapacitated;
- Orders Regarding Mechanical Measures: Orders to use or not use mechanical ventilation, dialysis, tube feeding, or other mechanical devices to keep a person alive;
- Organ Donation and Transplantation: Medical directives regarding donating a person’s organs for transplantation or their body for scientific study.
As seen, living wills tend to direct what life-sustaining measures should be used if an individual becomes terminally incapacitated. They may also deal with what machines should be used to preserve an individual’s life. However, living wills may also give other extremely specific orders regarding a person’s healthcare preferences.
It is also important to note that a person does not have to have a living will to communicate a do-not-resuscitate (DNR) order. A person may simply tell their doctor, if they are able, not to resuscitate them, and the doctor can put this in the person’s medical records. If a person is taken into a hospital and is conscious and in a compos mentis state, they can then communicate to their treating physician that they do not want to be kept alive by extraordinary or mechanical measures, e.g., a ventilator.
What Is a Durable Power of Attorney?
The other most common form of advance medical directive is a durable power of attorney (DPOA). A durable power of attorney is a legal document that allows a person to grant another person the legal authority to make decisions regarding their medical care if they are incapable of doing so. A person can also delegate other decision-making powers to their agent in a DPOA, such as the power to make financial decisions.
Typically, a person appoints a family member or close friend as the person who holds the authority, which is essentially the power of attorney. A regular power of attorney allows one individual to make all legal, medical, or financial decisions on behalf of another person.
However, in contrast, a durable power of attorney is not revoked when a person becomes incapacitated. A durable power of attorney does not end until the person who made it revokes it or dies. This is why durable powers of attorney are used as advance medical directives.
Due to the amount of authority that a durable power of attorney grants to the agent, it is important for a person to consider whether to execute one carefully. For example, a person should ensure that their values and wishes for their medical care will be respected and properly managed by the agent the person names before they execute the document.
However, the durable power of attorneys may be revoked at any time, so long as the person is of sound mind when they do so.
What Is a Health Care Proxy?
A health care proxy is a document in which a person designates another person to make health care decisions on their behalf, should they become incapacitated or unable to make decisions independently.
However, unlike a durable power of attorney, a healthcare proxy would never grant the designated person the ability to make financial or legal decisions for the person. Healthcare proxies only allow the agent to make medical decisions on their behalf.
What Is a Supported Decision-Making Agreement?
Supported decision-making agreements have become popular in the United States as an alternative to executing a power of attorney or health care proxy. Unlike a power of attorney, adult guardianship, or a health care proxy, a supported decision-making agreement still allows a person to retain their legal capacity to make decisions about their medical treatment.
A supported decision-making agreement allows a person to be helped in making decisions for themselves by trusted supporters. However, the named supporter does not make the decisions alone and on behalf of the person. Rather, they collaborate with the person to help them make their own decisions.
Texas was the first state to adopt laws allowing decision-making agreements in 2015. Since 2015, Alaska, Delaware, the District of Columbia, Nevada, North Dakota, Rhode Island, and Wisconsin have also joined Texas in passing supported decision-making agreement legislation. Other states may be expected to do so as well. It is important to note that state laws vary regarding the requirements for creating a valid supported decision-making agreement, who may serve as a supporter and the scope of the agreements.
Thus, a person needs to research their local state’s laws to understand whether supported decision-making agreements are available in their state and whether or not they are the best option for the person.
Should I Need the Help of a Lawyer with an Advance Medical Directive?
As can be seen, numerous different types of advanced medical directives allow you to plan and manage your future and direct how medical decisions will be made on your behalf.
Because of the options available, it is in your best interest to consult with a well-qualified elder law attorney. An elder law attorney will be able to advise you on what option would be the best solution for your particular circumstances. They can also help you properly draft the legal documents necessary for executing the advance medical directive you choose.
