Advance directives are legal documents that allow control over decisions such as what care should be provided when capacity to make decisions is lost. There are two primary types. Firstly there is a Living Will and secondly a Durable Power of Attorney for health care. These are recognized and defined documents by statute with the aim of providing a legal tool by which people can express their wishes. However, they are not the exclusive means available to express wishes. Any authentic expression of a patient's wishes should be respected.
An advance directive cannot be completed after a patient becomes mentally incapacitated and it does not become effective until after incapacity has been determined. If an advance directive has been prepared, an authorized surrogate must be identified to make medical care decisions.
A living will expresses a patient's preferences for end-of-life medical care. State laws vary greatly regarding scope and applicability of living wills.
A living will allows people to express preferences for the amount and nature of their medical care, from no care to maximum care. Detailed treatment preferences are desirable because they provide more specific guidance to practitioners. A living will cannot compel health care practitioners to provide medical care that is medically or ethically unwarranted.
To be valid, a living will must comply with state law. The living wills should be written in a standardized way. It should be appropriately signed and witnessed. Living wills go into effect upon (1) the loss of ability to make health care decisions or (2) the existence of a medical condition specified in the directive—typically a terminal condition, permanent vegetative state, or the end-stage of a chronic condition. State law provides a process for confirming and documenting the loss of decisional capacity and the medical condition.
Durable power of attorney for health care is a document in which one person names another person to make decisions about health care and only health care.
While a living will states a person's specific preferences regarding medical treatment, a durable power of attorney for health care designates an agent to make health care decisions. People who have both a living will and a durable power of attorney for health care should stipulate which should be followed if the documents seem to conflict. Because predicting future circumstances in all of their complexity is virtually impossible and because the durable power of attorney for health care designates a decision maker who can respond to here-and-now circumstances, a durable power of attorney is far more practical and flexible than a living will. The agent is granted the power to discuss medical alternatives with the physicians and make decisions if an accident or illness incapacitates the person. In most states, a health care practitioner involved in the care of the patient cannot serve as agent for health care matters, unless the practitioner is a close relative. The durable power of attorney for health care can include a living will provision or any other specific instructions but, preferably, should do so only as guidance for the agent, rather than as a binding instruction.
The durable power of attorney for health care should name an alternate in case the first-named person is unable to proceed the role for certain reasons. Two or more people may be named to serve together or alone. The use of the durable power of attorney for health care is valuable for adults of all ages. It is especially critical for unmarried couples, same-sex partners, friends, or other individuals considered legally unrelated who wish to grant each other the legal authority to make health care decisions and to ensure rights of visitation and access to medical information.
Physicians should obtain a copy of a patient's living will and durable power of attorney for health care. The contents should be reviewed with the patient while the patient is still capable, and make it part of the medical record. A copy of the durable power of attorney for health care should also be given to the patient's appointed agent and another copy placed with important papers. The patient's attorney should hold a copy of all documents.