Medical care providers are generally held to a strict legal duty to comply with your recorded wishes related to your health care if you become incapacitated. But there are some situations in which your doctor or medical care provider can go against the wishes that you have outlined in your advance directive.
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Health care directives are legal documents that allow you to specify your medical care preferences in the event you cannot make decisions for yourself. They often address life-sustaining treatments, end-of-life care, and organ donation, among other advanced care planning. You may also appoint a representative to carry out your wishes and make further decisions on your behalf. But do your health care providers have to follow your instructions or your agent’s decisions?
Duty to Follow Advance Health Care Directives
Medical care providers are generally held to a strict legal duty to comply with your recorded wishes related to your health care if you become incapacitated. In addition, if your health care directive or living will appoint someone as a legal agent in charge of your health care (also called a health care power of attorney), your providers are also under a duty to follow their orders and decisions about your care.
There are some situations in which your doctor or medical care provider can go against the wishes that you have outlined in your advance directive. Health care providers can do so when:
- Your decision is contrary to the conscience of your individual medical services provider
- Your decision goes against the policy of the health care institution
- Your decision would result in ineffective health care or violates the provider’s health care standards
Even if one of these situations applies, your health care provider cannot just ignore your medical directive. Your provider must immediately inform you or your agent. Then you or your representative will have the option to transfer you to another doctor or medical facility where your wishes and instructions will be honored. Indeed, if your doctor or medical care provider refuses to do so and still goes against your health care decisions, the doctor may be liable for damages to you.
If you are in a serious emergency, you may receive care from health care professionals you do not know or at health care facilities you have not been to. In cases like these, medical providers may not know, or even have time to find, your directive. You may be able to provide your preferences quickly by using a wallet card, Do Not Resuscitate (DNR) bracelet, or mobile phone app.
State Law Pregnancy Exceptions
If you are pregnant, doctors and medical care providers may be able to legally ignore your wishes and orders contained in your health care directives. Over half of all states have pregnancy clauses that invalidate a person’s advance directive if they are pregnant. Some states do this automatically, and some states allow a doctor to make that decision. Restrictions on whether a pregnant person can make their own decision sometimes depend on whether the fetus is likely to survive, and sometimes not. These laws legally override DNRs and other medical preferences for life-sustaining treatment.
In order to have your wishes still be carried out, you should specifically state in your health care directives what your wishes are for your care when you are pregnant. Even if you specify your wishes for when you are pregnant, your doctor may still be able to override your wishes to keep your embryo or fetus alive. Sometimes this decision is state-mandated, and your doctor cannot override it, even if they determine it to be counter to your best interest.
State advance directive forms and DNR forms often do not mention pregnancy exceptions. Check to see if your state addresses pregnancy in advance directives.
Strengthen Your Medical Directive
Your medical directive is more likely to be followed if it is well-informed and shared with those around you. Here are some methods to ensure your health care instructions are respected:
- Consult your doctor and review your medical record make sure your advance directive covers relevant choices and discuss what makes the most sense for you.
- Talk to your family members, close friends, health care proxy, and/or caregivers to make your treatment preferences clear.
- Review and update your directive if or when you receive a new diagnosis or your medical condition changes.
- Review and update your advance directive form once every decade.
- Give copies of your health care directive to your loved ones and medical providers.
- Make sure your legal document complies with state law.
Include Common Situations
Make sure your health care directive includes instructions on how you would like to be treated in different situations. End-of-life decisions that are commonly addressed in advance directives include:
- Cardiopulmonary resuscitation (CPR)
- Do Not Resuscitate (DNR) orders
- Artificial nutrition and hydration (such as tube feeding)
- Organ donation
- Palliative care (such as pain management or hospice care)
- Life support (such as ventilation)
- Continuation of dialysis
Also, consider how these decisions might change depending on the emergency. What if your mental health is impaired by, for example, a stroke? Would you prefer to be placed in a nursing facility, or would you want to receive care at home? What if you are diagnosed with a serious illness or terminal condition? Under what circumstances would you prefer a natural death?
Choose A Good Health Care Agent
Find a good advocate to be your durable power of attorney for health care! You can choose almost any adult to represent you, but a good medical agent will make sure that your doctor respects your medical decisions. Here are things to keep in mind when appointing your health care proxy:
- Are they good at decision-making? You want an assertive individual who is dedicated to carrying out your treatment decisions. This means they need to be a confident decision maker. They must also be comfortable disagreeing with your family members or medical providers if needed.
- Do they live nearby? It is easier to advocate for medical care in person, so your agent should live within a reasonable distance of you. They may need to be present frequently over a long period, perhaps even weeks, or months.
- Do they have good endurance? Choose an individual who is likely to outlive you and can withstand the stress of traveling frequently to your medical treatment center. For example, a health care agent who is undergoing cancer treatment may not be able to dedicate as much energy to your needs as somebody who is not immunocompromised. Consider an adult child instead of an elderly sibling or spouse.
Typically you do not want to name your health care provider or director of your nursing home (if applicable) as your power of attorney. Many state laws prohibit this as a conflict of interest.
Give Copies and Updates As Needed
It is easier to follow a medical directive when it can be easily accessed. However, you will need to replace copies every time you update your directive, so do not give away more copies than necessary. Give copies to your health care power of attorney and your attending physician. Tell close family members where you keep your copy at home.
There are many places where you can store your directive:
- Some states have advance directive registries that allow designated individuals to access your directive with your permission
- Private firms, including some law firms
- Mobile phone apps
Make Your Medical Decisions Legally Compliant
It is important that your advance directive complies with your state laws, otherwise, it may not be effective. To make your health care instructions official, you may need to have the document witnessed, and in some states, signed by a notary. Here are common errors that prevent health care directives from becoming effective:
- Health care proxies who do not meet legal qualifications
- Witnesses who do not meet requirements and qualifications
- Timing of when your health care agent’s authority begins
- Using the right form for your state
Note: Not all states will honor advance directives from other states. If you anticipate receiving treatment in a state other than your own, you should file an advance directive in the secondary state.
Consult an attorney if you are unclear about how to meet state filing requirements.
Have Questions About Health Care Directives?
Whether you are looking to write your own health care directive or you’re helping a loved one put their health care wishes on paper, you should always know the law. You can also get a jumpstart on your own using our state-specific living will forms.
- What are Advance Directives?
- The Definition of Power of Attorney, Living Will, and Advance Directives
- Advance Care Planning Fact Sheets
- Dying Without a Will: What Is the Probate Process?