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. (We give you more details on these 2 types below.)
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. (See the “Do Not Resuscitate” orders information below.)
Advance directives usually let you include instructions for other situations, too, such as when you may be unconscious for a short time, or 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 properly witnessed verbal statement that must then be written by someone else.
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 certain future health care decisions only when a person becomes unable to make decisions and choices on their own. The person must also have a terminal illness (the patient cannot be cured) or permanent unconsciousness (often called a “persistent vegetative state”). State laws vary, but they usually allow doctors to stop trying to prolong life when these things happen. 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 or would not want in these situations. It can describe 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 (such as the use of breathing machines).
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 model form is optional, but others require that their form be used. Most laws say that the document must be witnessed and notarized. Usually, the witnesses cannot be spouses, potential heirs, doctors caring for the patient, or employees of the patient’s health care facility.
There are many things to think about when writing 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” or “palliative care”.)
- Whether you want to donate your organs or other body tissues after death
It’s 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’ll want to make it clear exactly what you want and don’t want.
You may revoke (end or take back) a living will at any time. It’s important to know that a few states automatically void a living will after a certain number of years. Check out your state laws so you know if and, if so, how often you have to renew your living will.
There’s 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 make sure that your living will meets the requirements of all the states you spend a lot of time in.
A living will is much more limited than a health care power of attorney. Both apply only when you are unable to speak for yourself, but the living will takes effect only if you are terminally ill or permanently unconscious. The living will gives written instructions about certain things that might happen. But it can’t possibly cover every health care situation that could come up, and it may not cover your situation when you need it. With most types of living wills, you can’t choose an agent or proxy to make decisions for you, and no one is appointed to be sure that your wishes are carried out. That’s why you need a health care power of attorney also (discussed later).
State definitions of terminal illness vary and could make a living will less useful. A terminal illness is an irreversible condition (it cannot be cured) 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 legally defined as one in which the patient will die “shortly” whether or not medical treatment is given. 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. Again, it’s important to know the laws in your state so you and your family know what may happen if the time comes to use your living will.
Permanent unconsciousness, vegetative states, and brain death
State definitions related to permanent unconsciousness are more precise, but in some cases are also limiting. A persistent vegetative state (PVS) is due to a partial death of the brain from which a person cannot recover. It’s different from a coma, because sometimes people wake up from comas. People with PVS can breathe on their own. They also might reflexively move their limbs, follow objects with their eyes, smile, or make sounds.
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’s determined by a flat electroencephalogram (EEG) and certain medical signs. For instance, a person with brain death can’t breathe on their own. When brain death happens, the person is considered dead, and life support can be 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’s a legal document in which you name a person to be your proxy (agent) to make all your health care decisions if you become unable to do so.
Your proxy or agent 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. But some states do restrict your agent’s ability 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’s 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 (you), 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 2015, outlines 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 online at www.agingwithdignity.org. If you want to use this form for your advance directive, make sure that it’s accepted in your state and that it outlines your exact wishes and choices. If it’s not accepted as a legal advance directive in your state, it can still help you think about these important decisions. A completed form can also serve as a guide for your loved ones. But for legal coverage, you would still need to appoint someone as your agent and/or write a living will.
“Do Not Resuscitate” orders
Resuscitation means an attempt by medical staff to re-start your heart and breathing, such as CPR. In some cases they may also use life-sustaining devices such as breathing machines. (See “What is a life-sustaining medical treatment?” in the section called “Frequently asked questions.”)
In the hospital: A “Do Not Resuscitate” or DNR order means that if you stop breathing or your heart stops, nothing will be done to try to keep you alive. A DNR order allows natural death and is sometimes called an “Allow Natural Death” order. If you are in the hospital, you can ask your doctor to add a DNR order to your medical record. You would only 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 order each time you are admitted, so you may have to ask every time you go into the hospital. But remember that this DNR order is only good while you are in the hospital. Outside the hospital, it’s a little more difficult.
Outside the hospital: Some states have an advance directive that’s 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 dies, a moment of uncertainty sometimes results in a 911 call. This can mean unwanted measures are used. 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.
Physician Orders for Life-Sustaining Treatment
Physician Orders for Life-Sustaining Treatment (POLST) is not an advance directive, but a set of specific medical orders that a seriously ill person can fill in and ask their doctor to sign. The POLST is kept with you, and can be used in different health care settings. Emergency personnel – like paramedics, EMTs, and emergency room doctors – must follow these orders. Without a POLST form, emergency care staff are generally required to provide every possible treatment to keep you alive. POLST is available in few states so far. You can find out if your state is included and learn more at www.polst.org.
If you could become pregnant, you should also 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.