By, Angela Tiangco, Elder & Disability Law Clinic Student, Spring 2023
What are advanced directives?
Advanced directives (“ADs”) are legal documents that provide instructions for medical care if a person cannot communicate their own wishes.[1] The two most common ADs for health care are the living will and the durable health care power of attorney.[2] The living will is a legal document that informs doctors and other health professionals how an individual wants to be treated if an illness prevents them from making medical decisions in line with their values, wants, wishes, and needs.[3] It can also be used to state one’s preferences for other medical decisions like pain management or organ donation.[4] The durable power of attorney for health care is a legal document that names an individual’s health care proxy (“agent”) who will make the decisions for the individual.[5]
What are advanced directives for?
When thinking about advance directives, people usually think about end-of-life care.[6] ADs are particularly important for individuals with terminal conditions, which means either the person is expected to die in the near future or is in a “persistent vegetative state.”[7] In some states, like Virginia, an individual’s AD can cover all of their health care, including mental health care.[8] This involves writing preferences and instructions for medication and non-medication treatments, how to handle the individual if they are in crisis, preferred hospitals and crisis units, whether their agent can consent to hospitalization, etc.[9] People can also use ADs for general health care by writing down preferences and instructions about current health conditions and medications, allergies, administering medication, permitted hospital visitors, and more.[10]
Difficulties of Following Advanced Directives
One particularly tough problem with ADs is that the documentation is not easily accessible, especially for emergency responders, resulting in issues such as DNR orders not being followed.[11] It may even be the case that advance directive documentation is not accessible even within the same health system due to differing software.[12]
Individuals with ADs may also be concerned about their AD’s portability across state lines. Most documents regarding one’s medical preferences tend to be tethered to one’s state of residence due to their content and the formalities of execution being defined and regulated by state law.[13] For example, an individual health care agent must meet their state’s requirements for a health care agent.[14] There may also be an issue of portability when an individual is moved between providers with no provision for transferring ADs.[15]
These issues heavily limit the usefulness of ADs like living wills and DNR orders.[16]
Here are some best practices to help mitigate the difficulties of consulting advanced directives:
- Ensure that health care agents, alternative agents, and doctors have an updated copy of advance directives.[17]
- Ask to have a copy of your advance directives put in your hospital chart.[18]
- Store the original documentation in a secure place and notify health care agents, family, and friends know their location.[19]
- Consider carrying a card in your wallet with your health care agent’s name and contact information as well as whether you have an advanced directive and where to find it.[20]
- Wear “medical alert” bracelet to ensure emergency responders know you have an advance directive.[21]
- Note: Emergency responders will initiate life-saving procedures (unless there is an outside the hospital DNR) before considering personal preferences.[22]
While these will not guarantee that an individual’s advance directives are followed by health professionals, they will allow for greater accessibility and opportunity to at least be consulted.
[1] Advance Care Planning: Advance Directives for Health Care, NIH: Nat’l Inst. on Aging, https://www.nia.nih.gov/health/advance-care-planning-advance-directives-health-care (last visited Mar. 5, 2023).
[2] Id.
[3] Id.
[4] https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303
[5] Advance Care Planning, supra note 1.
[6] Advance Directives and End-of-Life Care, Va. Advance Directives, https://www.virginiaadvancedirectives.org/ads-and-end-of-life-care.html (last visited Mar. 5, 2023).
[7] Id.
[8] Advance Directives and Mental Health Care, Va. Advance Directives, https://www.virginiaadvancedirectives.org/ads-and-mental-health-care.html (last visited Mar. 5, 2023).
[9] Id.
[10] Advance Directives and General Health Care, Va. Advance Directives, https://www.virginiaadvancedirectives.org/ads-and-general-health-care.html (last visited Mar. 5, 2023).
[11] Hartford Courant, Advance Directives: Patients’ End-Of-Life Plans Often Lost At Critical Moments, Hartford Courant (Apr. 5, 2019), https://www.courant.com/2016/04/12/advance-directives-patients-end-of-life-plans-often-lost-at-critical-moments/.
[12] Id.
[13] Charles Sabatino, Can My Advance Directives Travel Across State Lines? An Essay on Portability, Am. Bar Assoc. (Oct. 1, 2016), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_38/issue_1_october2016/advance-directives-across-state-lines/.
[14] Mayo Clinic Staff, Living wills and advance directives for medical decisions, Mayo Clinic (Aug. 2, 2022), https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303.
[15] Steven H. Miles, MD, Advanced Directives to Limit Treatment: The Need for Portability, AGS: Geriatrics Healthcare Pros. (Jan. 1987), https://agsjournals.onlinelibrary.wiley.com/doi/full/10.1111/j.1532-5415.1987.tb01323.x.
[16] See Sabatino, supra note 13; Miles, supra note 15.
[17] Keep your advance directive safe but accessible, Harvard Health Publ’g, Harvard Med. Sch. (Feb. 22, 2019), https://www.health.harvard.edu/staying-healthy/keep-your-advance-directive-safe-but-accessible.
[18] Id.
[19] Id.
[20] Id.
[21] Portability of Advance Directives, Ctrs. for Disease Control and Prevention,https://www.cdc.gov/training/ACP/page34797.html (last visited Mar 5. 2023).
[22] Id.