What Are Advance Directives?

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

You can make your wishes clear if you want a do not resuscitate (DNR) order, a natural death, pain management, and other medical orders. Advance directives provide peace of mind to family and caregivers and give your healthcare providers clear guidance for emergencies and end-of-life care.

What Exactly Are Advance Directives?

Advance directives are legally valid documents within general estate planning. 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 healthcare decisions on your behalf

This document is key before a medical situation arises where you can't communicate your decisions. 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:

  • The living will
  • 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?

Advance directives become effective in most states 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 may not also be a witness. Some states also require the advance directive to be notarized.

The Living Will Basics

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

States may also call this:

  • Health care declaration
  • Medical directive
  • Directive to physicians

No matter the term, the purpose of a living will is to instruct and guide your family and doctors about your medical wishes at the end of life.

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

You can view a sample living will form and read explanations of each section to better understand these forms.

Health Care Power of Attorney Basics

A healthcare power of attorney is also referred to as:

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

This form allows you to appoint someone to help deal with your medical situation if you cannot speak for yourself.

Typically, a healthcare power of attorney goes into effect after one or more doctors certify that your medical conditions qualify under your state laws. They will also certify that you cannot make medical decisions on your own.

You can create a power of attorney with a DIY form in simple cases.

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 currently reside.

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 document and 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 having surgery or another procedure requiring a hospital stay, 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 legal concerns, start by talking to an attorney.

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

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.

 If you need an attorney, find one right now