Practical Guidelines for Advance Directives and Health Care Proxies

One of the controversies surrounding the health care proposals which have been debated by Congress in recent months has involved questions about advance directives or "living wills." Opponents have raised fears that some elderly and infirm individuals might be forced to report their preferences repeatedly, perhaps as often as every five years. This article summarizes the current state of the law on advance directives and offers some practical suggestions on how to assure that your desires remain clear.

Various Types of Advance Directives and How They Are UsedAdvance directives are instructions about the kinds of medical treatments that persons would want in the future in the event they were to become incapacitated. Advance directives may be verbal. Individuals may simply tell another person their wishes if they were to become unconscious or incapable of making medical decisions. When these instructions are put down in writing (the preferable course) they are called "living wills." One version or variation is a "do not resuscitate" or DNR order. A DNR is a request not to have cardiopulmonary resuscitation or CPR if your heart stops or if you stop breathing.

Durable powers of attorney or health care proxies are another type of advance directive. They identify the specific person(s) who will have the legal authority to make health care decisions for the incapacitated patient. Health care proxies are often coupled with living wills. The living will expresses the patient's choices regarding medical treatment, and the health care proxy identifies the surrogate decision-maker who would be implementing those decisions for the patient.

Preparing Your Advance DirectivesLiving wills and health care proxies are legal in most states, but the particular requirements for creating them differ. Each state has its own law, and sometimes, its own forms. Sample forms are often available free of charge either on-line, through health departments and state agencies, or through state bar associations. It is probably not necessary to have an attorney prepare your advance directive, but you may want to consult with counsel if there are special circumstances or concerns.

Generally, any person over the age of 18 years can prepare an advance directive. Preparing a living will should involve more thought, however, than simply filling out a standard form. The time spent thinking about the care that you would want, or would not want, and discussing your preferences with family members or loved ones may be much more meaningful than simply checking off boxes on a form. Three issues are especially critical.

First, those preparing advance directives should be as specific as possible. Your instructions should indicate whether you want every available medical procedure performed in order to prolong your life or just certain, limited medical interventions.

Consider the full range of medical options open to you, and indicate whether you would want such procedures as resuscitation and intubation, antibiotics, hydration, blood transfusions and/or feeding tubes.

Second, you should give considerable thought about whom you designate as your health care proxy. A leading study in 2004 compared how closely surrogate decision-makers matched the quality of life assessments of the persons who had designated them as proxies. The study found that the greatest correlation in assessments existed between persons with disabilities and their family members. Proxies who were not relatives or close friends had a marked tendency to overestimate impairments and to underestimate quality of life factors. Accordingly, your surrogate decision-maker should know you and your preferences very well.

Third, you should make these life and death decisions well before they become necessary. Under Federal law, medical facilities must inform patients upon admission that they have the right to make advance directives and to have them respected. This is almost always a challenging and stressful time for such decisions. It is much better to prepare living wills and proxies in the comfort of one's home, rather than a hospital. Discussing your preferences in advance will likely lead to more objective assessments, avoid emotional conflicts and provide peace of mind.

There is little downside risk to preparing your directives well in advance. You may change or cancel your instructions at any time as long as you are still able to think rationally and communicate your wishes in a clear manner. Once you have finished preparing your advance directives, you should provide copies to the proxy whom you have designated, key family members involved and your doctor.