Advance Medical Directives

Advance medical directives (AMDs) are documents that address a variety of complicated medical, legal, and ethical situations that may arise during serious illness, incapacity (including coma), or near the very end of life. Every state recognizes a patient's right to make fundamental choices as to the care and treatment that he or she will or will not receive at such times. These choices are addressed in documents that are known by various names, such as living will and durable power of attorney for health care. However, all have the same general purpose and are therefore known collectively as AMDs.

Whether you've actually signed an AMD or not, your consent must be obtained for your medical treatment as long as you retain the capacity to make and express decisions for yourself. This leaves you solely and totally in control. If you have an AMD, you can revoke or modify it at any time, provided that you are still capable of doing so. Once your attending physician concludes that you are incapable of making decisions or giving your consent, however, the AMD goes into effect.

Many people have heard of a living will, but few realize that it is actually a contracted form of AMD. In most states, the living will speaks only to life-prolonging measures (such as cardiopulmonary resuscitation) and applies only when death is imminent without such treatment, or when the patient is in a continual vegetative state. A living will would therefore be of no use to a patient who needs a decision, for example, about chemotherapy, exploratory surgery, or dialysis (none of which are classified as life-prolonging) but is unable to give such consent. For this reason, an AMD that is comprehensive in the medical situations it addresses should be considered as an alternative.

Generally speaking, no specific format is required for an AMD, although some states have more rigid requirements than others as to the wording of the document. Most states have laws that include a sample form for appointing a health-care proxy or for creating a comprehensive advance directive. In many states, the use of these forms is optional, or at most they need be followed only substantially. The document can be prepared without the aid of an attorney if you so desire.

With regard to signing and witnessing an AMD, the required procedures vary. In addition to your own signature, it's advisable to have at least two witnesses sign the document as well. All signatures must be notarized. (Although this may exceed the requirements of your state, it should help to ensure that your AMD would be recognized in other states.) Be sure to include a clause in which the witnesses attest that they know you personally, and that you appear to be of sound mind and are under no duress or undue influence. Additionally, you and the witnesses should acknowledge that the document being signed is, in fact, your advance medical directive. It's extremely important to follow – or even surpass – the signing and witnessing requirements of AMDs by the laws in your state. If the document is not executed according to regulation, it could be invalid, keeping medical personnel from following its directions.

Under the law of many states, the following people – who might be at your side during a severe illness – are not valid witnesses (the rule basically states that anyone who could potentially gain by your demise is disallowed): your attending physician; a health-care provider or his (or her) employees; a health-facility operator or its employees; anyone related to you by blood, marriage, or adoption; or anyone entitled to any part of your estate under an existing will or by operation of law.

In all states, a person has the right to select a health-care agent, healthcare surrogate, or health-care proxy (all three terms are equivalent); this appointee is someone who can speak for you concerning matters of your medical treatment when you cannot, and prepare a comprehensive medical directive according to your wishes. The healthcare agent can be authorized to make any health care decision that you could have made yourself if you had decision-making capacity, as long as it conforms to your wishes and accepted medical practice.

However, the agent need not be chosen only in anticipation of death; he or she can also be empowered to deal with temporary incapacity. Because a disabling medical crisis can occur suddenly and without notice, it's wise to prepare a document of this type far in advance of its necessity. You'll thus have ample time for a detailed discussion with your agent, during which you can express your values and what you would want to have done (or not done) under various medical scenarios. Furthermore, be absolutely sure the agent understands and accepts the emotional burden that such a role inherently carries.

In order to give your agent sufficient healthcare decision-making authority on your behalf, your own AMD document should at least grant the following basic powers:

  • To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical or diagnostic procedures, medication, and the use of mechanical or other means to affect any bodily function, including (but not limited to) artificial respiration and cardiopulmonary resuscitation;
  • To authorize your admission to or discharge from (even against medical advice) any hospital, nursing home, or other facility;
  • To authorize any medication or procedure intended to relieve pain, even though such treatment might lead to bodily damage, drug addiction, or hasten the moment of (but not intentionally cause) your death; and
  • To refuse or discontinue any life-sustaining treatment. The expression of the patient's wishes about 'life-sustaining-' or 'life-prolonging treatment' is possibly the most critical provision contained in an AMD (the terms are equivalent; different state statutes may use one or both of them interchangeably.) If you want your doctors to employ maximum life-sustaining efforts, your AMD should clearly alert everyone to that fact. If that's not your desire, make certain that your agent knows what your wishes are – and be sure to document those wishes in your AMD.

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