What Are Advance Directives?

Having an advance health care directive is one of the most important things you can do if, in the future, you can no longer make medical care decisions on your own behalf. No matter how good your doctors are or how much your family loves you, they cannot read your mind.

An advance health care directive allows you to make your wishes clear about medical orders such as a do not attempt resuscitation (DNR) order or a physician order for life-sustaining treatment (POLST).

In simpler terms, it allows you to choose your health care wishes and make medical treatment decisions in advance of the end of your life. Advance care planning provides peace of mind to you, your family, and your caregivers. It also gives your health care providers clear guidance for emergencies and end-of-life care.

What Exactly Is an Advance Directive?

An advance directive is a legally valid estate planning document. Depending on the type of advance directive, it allows you to:

  • Express your wishes about the kind of medical treatments you want
  • Give a person of your choosing the ability to make health care decisions on your behalf

This document is key before a medical situation arises that impairs your decision-making abilities. Advance directives are especially useful in medical emergencies or near the end of a person's life.

There are two main types of legal documents under the advance directive umbrella:

  • A living will
  • A durable health care power of attorney

States regulate the use of advance directives, and laws vary among the states. Some states permit family members to make all medical decisions for their incapacitated loved ones. In contrast, other states require clear evidence of the person's wishes or a legally designated decisionmaker.

When Do Advance Directives Become Effective?

In most states, advance directives become effective after one or more doctors certify that:

  1. You are unable to make medical decisions on your own
  2. You are in a condition specified in the state's living will law
  3. You meet other state requirements as applicable

To be valid, an advance directive must be:

  • Signed by you in the presence of two witnesses
  • Signed by the two witnesses

The person you name as a health care agent cannot serve as a witness. Some states also require the advance directive to be notarized.

The Living Will Basics

living will allows you to legally establish your wishes about medical treatments if you become ill, disabled, or unable to communicate your wishes directly.

States may also refer to a living will as a:

  • Health care declaration
  • Medical directive
  • Directive to physicians

No matter the term, the purpose of a living will is to instruct your family and healthcare professionals about your medical wishes at the end of your life. For example, your living will can establish whether you want a do-not-resuscitate order or want to be put on life support. You can also state whether you are open to organ or tissue donations and whether you are interested in palliative care at the end of your life.

A living will takes effect once a physician (or more than one physician in some states) certifies your condition. The medical condition must be specified in your state's living will laws. The living will only goes into effect after you cannot make medical decisions.

FindLaw allows you to view a sample of a living will form and read explanations of each section to better understand these forms.

Health Care Power of Attorney Basics

A health care power of attorney is also referred to as a:

  • Health care proxy
  • Appointment of a health care agent
  • Durable power of attorney for health care

You are in charge of making your own health care decisions until you are no longer able to do so. A health care power of attorney allows you to legally appoint someone to make decisions about your medical situation in the event you cannot speak for yourself.

Typically, a health care power of attorney goes into effect after one or more doctors certify that your medical condition(s) qualifies under your state laws. They will also certify that you cannot make medical decisions on your own.

If you wish to give someone the power to make financial decisions on your behalf, you can create a financial power of attorney.

You can create a power of attorney with FindLaw's DIY form.

Out-of-State Advance Directives

Some states will honor an advance directive from another state. This is especially true if the state laws have the same requirements for advance directives.

Other states may not honor an out-of-state advance directive, so it's important to create an advance directive in the state where you now live.

What To Do With a Completed Advance Directive

The best thing you can do after creating an advance directive is to make several photocopies of the completed advance directive form. It is also important that you keep the originals in a safe place.

You never know when you will need the advance directive, so it is a good idea to give copies to your doctors, agent, family members, or friends.

Lastly, if you are admitted to a hospital, nursing home, or other care facility, it may also be wise to bring your advance directive with you and keep it in your medical file.

If you are unsure where to start with creating an advance directive or have other elder law or estate planning concerns, start by talking to an elder law attorney.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Complex elder law situations usually require a lawyer
  • A lawyer can reduce the chances of a family dispute
  • DIY living wills, and powers of attorney are possible in some simple cases
  • You can always have an attorney review your form

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