Lesson 1, Topic 1
In Progress

Advance Directives

July 10, 2022

Advance directives are signed and witnessed documents that provide specific instructions for health care treatment in the event that a person is unable to make these decisions personally at the time they are needed.

The two basic types of advance directives are living wills and durable powers of attorney for health care. Many patients have instituted one or both.

The Patient Self-Determination Act (PSDA; 1991) requires health care institutions to provide written information to patients concerning the patient’s rights under state law to make decisions, including the right to refuse treatment and formulate advance directives. It is especially important to understand patients’ cultural beliefs and values when explaining advance directives. Regulatory mandates to benefit the public are based on the dominant value in American society of self-determination, which may be in conflict with a patient’s cultural heritage.

Under the act, whether the patient has signed an advance directive must be documented in the patient’s record. The hospital is also required to ensure that state law is followed. The institution must provide education for the staff and the public concerning living wills and durable powers of attorney. For either type of advance directive to be enforceable, the patient must be legally incompetent or lack capacity to make decisions regarding health care treatment. The termination of legal competency is made by a judge, and the determination of decisional capacity is usually made by the physician and the family. Therefore, the advance directive is implemented within the context of the health care team and the health care institution. One should be familiar with the institution’s policies involving the act.

FIGURE 2-5 Example of a living will.

A living will is a written document that directs treatment in accordance with a patient’s wishes in the event of a terminal illness or condition (Figure 2-5). Living wills are often difficult to interpret and are not clinically specific in unforeseen circumstances. Each state has its own requirements for executing living wills. Generally, the presence of two witnesses is required when the patient signs the document; neither may be a relative or physician. If health care workers follow the directions of the living will, they are immune from liability.

A durable power of attorney for health care designates an agent, surrogate, or proxy to make health care decisions on the patient’s behalf based on the patient’s wishes.

In addition to federal statutes, the ethical doctrine of autonomy ensures the patient the right to refuse medical treatment. This right was upheld in the Bouvia v Superior Court case in 1986. That case allowed the discontinuation of the patient’s tube feedings as per the patient’s prior request. The courts have also upheld the right of a legally competent patient to refuse medical treatment based on religious beliefs. Jehovah’s Witnesses, for example, accept medical treatment but refuse blood transfusions. In the absence of a truly compelling reason otherwise, the right to make such choices is protected. The U.S. Supreme Court stated in the Cruzan v Director, Missouri Department of Health case in 1990 that “we assume that the U.S. Constitution would grant a constitutionally protected competent person the right to refuse lifesaving hydration and nutrition.” In cases that involve the patient’s right to refuse or withdraw medical treatment, the courts balance the patient’s interest with the state’s interest in protecting life, preserving medical ethics, preventing suicide, and pro­tecting innocent third parties. Children are generally considered innocent third parties. Although the courts do not force adults to undergo treatment that is refused for religious reasons, they do grant an order that allows hospitals and physicians to treat children of Christian Scientists or Jehovah’s Witnesses who have denied consent for treatment of their minor children.

Box 2-7 The Living Will and Durable Power of Attorney

  • People who receive extraordinary measures to prolong life are often unconscious or mentally incompetent by the time these measures are put into effect; therefore, only by deciding ahead of time what kind of care you want and communicating these decisions to others can you ensure that you receive the extent of care that you want. This can be done through such documents as a living will and a medical durable power of attorney. If your state has adopted legislation for either or both documents, you should use the legally approved wording.
  • Address the living will and send copies of it to your family physician, your attorney, and close family members. It specifies that if the time comes when you can no longer take part in decisions for your own future, this statement will stand as an expression of your wishes and directions while you are still of sound mind.
  • You may, for example, direct that if a situation should arise in which there is no reasonable expectation of recovery from extreme physical or mental disability, you be allowed to die and not be kept alive by medications, artificial means, or “heroic measures.” You may also, of course, use a living will to request such measures to keep you alive as long as possible. You may request pain-relieving medication, even though it may shorten your life. You may spell out specific provisions with regard to, for example, cardiac resuscitation, mechanical respiration, antibiotics, tube feeding, and permission to offer your organs as transplants to other people.
  • Some “living will” legislation applies only to terminally ill patients, not to patients who are incapacitated by illness or injury but may live many years in severe pain, who are in a coma, or who are in some other greatly disabled state. Thus, it is advisable to draw up a durable power of attorney, an instrument that appoints another person (a health care surrogate) to make decisions in the event of your incompetence. A number of states have enacted statutes expressly for decisions about health care, known as a “medical durable power of attorney.” In these states, filling out a form is all that is required; you do not have to consult an attorney.
  • Depending on the statute, the agent you appoint (someone you trust and have confidence in) may give, withdraw, or withhold consent to specific medical or surgical measures; hire and fire medical personnel; gain access to your medical records; go to court to carry out your wishes; spend or withhold funds for treatment; and interpret your living will.

Remember

  • Both documents must be signed and dated before two witnesses who are not blood relatives and to whom you are not leaving property.
  • For the durable power of attorney, you must have your signature notarized. If you choose more than one proxy for decision making on your behalf (a good idea in case your first choice is not available), give an order of priority (1, 2, 3).
  • Give a copy to your physician to keep in your medical file, and be sure that the physician agrees with your wishes.
  • Give copies to close relatives, friends, or both.
  • Tell these people about your intentions now.
  • Look over your living will once a year. Redate it and initial the new date to make it clear that your wishes are unchanged.

When patients are legally incompetent and are unable to make health care decisions, the court steps in. Balancing the state’s interest with that of the patient, the court attempts to deliver a judgment that represents what the patient would have chosen if competent. The Supreme Court held in the Cruzan case that states had the right to require “clear and convincing evidence” of a legally incompetent patient’s prior wishes when making determinations to discontinue life-sustaining treatment. In that case, nutrition and hydration were recognized as life-sustaining medical treatment that could be withdrawn.

Every state now requires “clear and convincing” evidence of the patient’s choice, but individual states differ as to what standard satisfies the requirement. In the absence of evidence indicating the patient’s prior choice, most states allow treatment to be stopped based on other factors, including the best interest of the patient balanced with the state’s interest (Box 2-7).