Types of advance directives
Types of advance directives vary based on state law and individual preferences within the states’ legal requirements. The 2 most common types of advance directives are the living will and the durable power of attorney for health care, which is sometimes called the health care power of attorney or health care proxy.
- The living will covers health care decisions when you are terminally ill and unable to make decisions, or permanently unconscious (discussed below).
- The durable power of attorney for health care allows you to name an agent or proxy (substitute person) to make your health care decisions if the time comes when you are unable to do so.
Advance directives can also include extra instructions about your health care decisions. For instance, they allow you to specify when you do not want to be resuscitated or if you want to make organ or tissue donations. (Resuscitation means an attempt by medical staff to re-start your heart and breathing, such as CPR. In some cases it may also include life-sustaining devices such as breathing machines. See “What is a life-sustaining medical treatment?” in the section called “Frequently asked questions.”)
Advance directives usually let you include instructions for other situations, too, such as when you may be unconscious for a short time, or are impaired by Alzheimer disease or a similar condition.
If you do not have written advance directives, some states recognize spoken (oral) advance directives as legal. A person may generally make a verbal statement that is then written by someone else if it is properly witnessed.
If you expect problems with mental illness, you can also outline your health care choices in the event that you become seriously mentally ill and are unable to make health care decisions. This is called a mental health care directive or psychiatric care directive.
The living will
A living will is a document designed to control future health care decisions only when you become unable to make decisions and choices on your own.
State laws vary, but they generally allow doctors to stop trying to prolong life in the case of terminal illness (one that cannot be cured) or permanent unconsciousness (often called a “persistent vegetative state”). If a person has hope of recovery, the living will generally does not apply. The living will describes the type of medical treatment the person would want in these situations and under what conditions an attempt to prolong life should be started or stopped. This applies to treatments such as dialysis, tube feedings, or artificial life support.
The living will is a formal legal document that must be written and signed by the patient. Some state laws include a model form. For most states the form is optional, but others require that their form be used. Most laws require that the document is witnessed and notarized. Spouses, potential heirs, a doctor caring for the patient, or employees of health care facilities are usually not allowed to witness living wills.
There are many things to think about when drafting a living will. These include:
- The use of equipment such as dialysis (kidney) machines or ventilators (breathing machines)
- “Do not resuscitate” orders (instructions not to use CPR if breathing or heartbeat stops)
- Whether you would want fluid (usually by IV) and/or nutrition (tube feeding into your stomach) if you couldn’t eat or drink
- Whether you would want food and fluids even if you weren’t able to make other decisions
- Whether you want treatment for pain, nausea, or other symptoms, even if you aren’t able to make other decisions (this may be called “comfort care”)
- Whether you want to donate your organs or other body tissues
It is also important to know that choosing not to have “aggressive medical treatment” is different from refusing all medical care. A person can still get antibiotics, nutrition, pain medicines, and other treatments. It’s just that the goal of treatment becomes comfort rather than cure.
You may revoke (end or take back) a living will at any time. It is important to know that a few states will automatically void the living will after a certain number of years.
There is no general agreement for recognizing living wills from other states. If you spend time in more than one state, you should create separate living wills, or find a way to be sure that your living will meets the requirements of all the states you spend a lot of time in.
A living will is more limited than a health care power of attorney (discussed later). The living will generally applies only when you are unable to speak for yourself, and you are terminally ill or permanently unconscious. It also only gives written instructions about certain things that might happen and does not cover every health care situation that could come up. This means it may not cover your situation when you need it. With a living will, you cannot choose an agent or proxy to make decisions for you or be sure that your wishes are carried out.
State definitions of terminal illness may make a living will less useful. A terminal illness is an irreversible condition that in the near future will result in death or a state of permanent unconsciousness from which you are unlikely to recover. In most states, a terminal illness is defined as one in which the patient will die “shortly” whether or not medical treatment is given. Still, state definitions vary. For example, some states require death to be expected within a certain number of hours or days. In those states, life-sustaining treatment could continue, even though the patient is terminally ill and mentally incompetent, until just hours or days before death would be expected.
State definitions related to permanent unconsciousness are more precise, but in some cases are also limiting. A persistent vegetative state results from a partial death of the brain from which a person cannot recover. It is different from a coma, because sometimes people wake up from comas. The diagnosis of persistent vegetative state takes time to make. A person in a persistent vegetative state may survive for years on artificial feeding and other life support, so a few states do not permit life-sustaining treatment to be stopped in these cases. On the other hand, all states have legally adopted a standard definition of brain death as an “irreversible cessation (stopping) of all functions of the entire brain, including the brain stem.” Brain death is when all parts of the brain have stopped working. It is determined by a flat electroencephalogram (EEG) and certain medical signs. When brain death happens, the person is considered dead, and life support can stopped.
Durable power of attorney for health care / health care power of attorney
A durable power of attorney for health care is also called a health care power of attorney. It is a legal document in which you choose a proxy (agent) to make all your health care decisions if you become unable to do so.
Your proxy, can speak with doctors and other caregivers on your behalf and make decisions according to directions you gave earlier. The person you chose decides which treatments or procedures you do or do not want. If your wishes in a certain situation are not known, your agent will decide based on what he or she thinks you would want and what he or she considers to be in line with your wishes. But some states do restrict the ability of your agent to carry out some requests. For example, a few states do not allow your agent to stop artificial nutrition (feeding) and hydration (giving fluids).
The person named as your proxy or agent should be someone you trust to carry out your wishes. If needed, this person must be able to do this in a time of great stress, uncertainty, and sadness. Talk to your proxy and be sure that he or she is comfortable in this role. And be sure to discuss your wishes in detail with that person. It is also a good idea to name a back-up person in case your first choice becomes unable or unwilling to act on your behalf. The law does not allow the agent to be a doctor, nurse, or other person providing health care to you at the time you choose them, unless that person is a close relative.
State laws that let you choose a proxy or agent usually require that the request be in writing, signed by the person choosing the proxy, and witnessed. In many cases, the proxy also signs the document. Some states have a special form for this.
The “Five Wishes” and directives like it
Advance directives vary a lot by state, but many states let you include instructions for certain situations, such as when you are unconscious for a short time, or are impaired by Alzheimer disease. For example, the “Five Wishes” form, recognized in 42 states as of 2011, asks whom you would want to make your health care decisions if you could not, your choice of medical treatment, how you want to be treated, instructions on comfort care, and final expressions or wishes for family and friends.
You can find out more about the Five Wishes on the Web at www.agingwithdignity.org. If you want to use this form, make sure that it is accepted in your state and that it outlines your exact wishes and choices.
“Do Not Resuscitate” orders
If you are in the hospital, you can ask your doctor to add a “Do Not Resuscitate” or DNR order to your medical record. You would ask for this if you didn’t want the hospital staff to try to revive you if your heart or breathing stopped. Some hospitals require a new DNR each time you are admitted, so you may have to ask at every admission. But remember that an in-patient DNR order is only good while you are in the hospital. Outside the hospital, it’s a little more difficult.
Some states have an advance directive that is called a Do Not Attempt Resuscitation (DNAR) or special Do Not Resuscitate (DNR) order for use outside the hospital. The non-hospital DNR or DNAR is intended for Emergency Medical Service (EMS) teams, who answer 911 calls and are usually required to try to revive and prolong life in every way they can. Even though families expecting a death are advised to call other sources for help when the patient worsens, a moment of uncertainty sometimes results in a 911 call. This can mean unwanted measures that prolong death. The non-hospital DNR or DNAR order offers a way for patients to refuse the full resuscitation effort in advance, even if EMS is called. It must be signed by both the patient and the doctor.
You should also know that if you could become pregnant, you should very clearly state your decisions in case something happens during pregnancy. Whether the health care provider will honor your decisions at this time depends on the following:
- The risks to both you and the fetus
- How far along you are in the pregnancy
- The policies of the doctors and health care facilities involved
In most cases, if you are in the second or third trimester of pregnancy, your doctors will give all the medical care they think is necessary to keep you and the fetus alive.
Organ and tissue donation instructions can be included in your advance directive. Many states also provide organ donor cards or add notations to your driver’s license.
Last Medical Review: 06/28/2011
Last Revised: 06/28/2011