This checklist outlines and provides basic information regarding the most common types of advance health care directives across the United States, including information regarding the appointment of health care agents, making end-of-life decisions, making mental health care decisions, and Health Insurance Portability and Accountability Act (HIPAA) releases.
Advance Directives Naming a Health Care Agent
Purpose and Use
- States generally allow a person (the principal) to appoint another person (the agent) to make health care decisions, receive protected health information, or both, on the principal’s behalf.
- In many states, the document used to name a health care agent is a standard form used throughout the state and may be a statutory form (for example, 755 ILCS 45/4-10; N.C.G.S. § 32A-25.1; Cal. Prob. Code § 4701; N.Y. Pub. Health Law § 2981(5)). Among states that provide a statutory form, some:
- require counsel to substantially adhere to the statutory form when drafting health care directives (for example, Ala. Code § 22-8A-4(h)); or
- provide that the form is not a mandatory form (for example, Cal. Prob. Code § 4700). However, in these states it is still generally advisable to use the statutory form language where possible since health care providers and institutions in the state are more familiar with the statutory form.
- Terminology for these documents differs by state. For example, in some states they are called:
- health care proxies (for example, N.Y. Pub. Health Law § 2980(8));
- designations of health care surrogate (for example, § 765.202, Fla. Stat.);
- health care or medical powers of attorney (for example, Tex. Health & Safety Code Ann. § 166.164); or
- advance directives for health care (for example, Md. Code Ann., Health-Gen. § 5-601(b)).
- An advance directive naming a health care agent typically addresses the appointment of a health care agent and the agent’s powers. In some states, it might also address issues including:
- end-of-life decisions (for example, N.J.S.A. 26:2H-67 to 26:2H-69);
- organ donation and anatomical gifts (for example, O.C.G.A. §§ 31-32-7(e)(5) and 44-5-143); and
- mental health treatment, though some states require this be done in a separate document (for example, N.J.S.A. 26:2H-102 to 26:2H-128 and see Advance Directives Regarding Mental Health Treatment, below).
- Depending on state law and elections made by the principal, an advance directive naming a health care agent typically may be effective either:
- on the principal’s incapacity (for example, Cal. Prob. Code § 4658); or
- immediately once it is signed, however, the principal’s decisions are typically honored first if the principal has capacity (for example, Md. Code Ann., Health-Gen. § 5-602(e)).
Limitations
- Though it varies by state, an advance directive naming a health care agent generally empowers an agent to act on the principal’s behalf but does not necessarily specify the principal’s wishes. In those cases, absent a separate advance directive specifying the principal’s wishes, such as the principal’s wishes regarding end-of-life care (see Advance Directives Regarding End-of-Life Care, below), the agent makes decisions under standards imposed by law (for example, in the principal’s best interests).
- Typically, only an acting agent can receive protected health information and medical records necessary to make informed decisions about the principal’s care unless the principal has also executed a stand-alone HIPAA release that gives the agent immediate authority to receive this information (see HIPAA Releases, below.)
- Depending on state law, the advance directive naming a health care agent might not address other health-related issues, such as:
- disposition of remains;
- organ donation;
- specific instructions regarding mental health treatment; and
- the client’s specific wishes regarding end-of-life care.
Execution
- Generally, any competent adult may execute an advance directive naming a health care agent.
- Depending on state law, a guardian for a minor may be able to designate a health care agent for the minor (for example, § 765.2035, Fla. Stat.).
- Execution requirements for an advance directive naming a health care agent vary by state. States may:
- require the principal to sign the advance directive in the presence of two witnesses who also sign the document (for example, N.Y. Pub. Health Law § 2981(2); Conn. Gen. Stat. Ann. § 19a-576(a)); or
- allow the principal to choose whether to sign the advance directive in the presence of two witnesses or before a notary (for example, Tex. Health & Safety Code Ann. § 166.154; Cal. Prob. Code § 4673(a)(3)).
- When state law requires an advance directive naming a health care agent to be witnessed, the witnesses typically must be adults (for example, § 765.202(1), Fla. Stat.). State law may also have other restrictions, such as that one or both witnesses cannot be:
- related to the principal by blood, marriage, or adoption (for example, Cal. Prob. Code § 4674(e));
- a person appointed as health care agent in the advance directive (for example, O.C.G.A. § 31-32-5(c)(2));
- the principal’s health care provider (for example, N.C.G.S. § 32A-16(6)); or
- a person who would be entitled to any portion of the principal’s estate on the principal’s death (for example, Tex. Health & Safety Code Ann. § 166.003(2)(c)).
- Some states require that the health care agent accept the appointment in writing before the agent’s appointment becomes effective (for example, Ala. Code § 22-8A-4(b)).
Revocation
- Unless an advance directive naming a health care agent provides otherwise, it typically is effective until the principal dies or revokes it.
- A principal, if competent, may typically revoke an advance directive naming a health care agent at any time. The requirements for a valid revocation vary by state but typically allow a principal to revoke an advance directive naming a health care agent by actions such as:
- notifying the agent or a health care provider orally or in writing (for example, N.Y. Pub. Health Law § 2985(1)(a); § 765.104, Fla. Stat.);
- physically destroying the advance directive document (for example, 755 ILCS 45/4-6(a));
- executing a new advance directive naming a health care agent that conflicts with the first one (for example, Md. Code Ann., Health-Gen. § 5-604(a)(1)); or
- including an expiration date in the advance directive (for example, N.Y. Pub. Health Law § 2981(5)(c)).
Advance Directives Regarding End-of-Life Care
Purpose and Use
- States generally allow a principal to sign a document that gives instructions regarding the principal’s decisions for end-of-life care.
- Terminology for these documents differs by state. For example, in some states they are called:
- living wills (for example, 10 NYCRR § 400.21(b)(3)); or
- directives to physicians (for example, Tex. Health & Safety Code Ann. § 166.031(1)).
- An advance directive regarding end-of-life care typically sets out the conditions under which life-prolonging procedures should be withdrawn to let the body die naturally.
- An advance directive regarding end-of-life care may be used either alone or along with a document appointing a health care agent (see Advance Directives Naming a Health Care Agent, above). If there is no agent appointed for a principal, the principal’s physician typically uses the information in an advance directive regarding end-of-life care as guidance when treating the principal (for example, Tex. Health & Safety Code Ann. § 166.038(c)).
- An advance directive regarding end-of-life care can help an appointed health care agent or the treating physician understand the principal’s wishes when difficult decisions are required and can help avoid disputes regarding end-of-life care decisions.
Limitations
- An advance directive regarding end-of-life care typically only addresses decisions that must be made if the principal has a terminal disease or is in another type of end-of-life situation with no reasonable hope of recovery, such as decisions regarding whether to administer life-sustaining treatment, and is therefore not suitable for addressing every issue that could arise regarding a client’s health care.
- Though it varies by state, an advance directive regarding end-of-life care generally lays out the principal’s wishes in limited end-of-life circumstances but may not empower an agent to carry out those wishes. In this case, the principal may need to sign a separate advance directive naming a health care agent if the principal wants to empower an agent to:
- carry out the principal’s wishes; and
- make broader decisions regarding the principal’s health care on topics and issues not necessarily addressed in the advance directive regarding end-of-life care.
(See Advance Directives Naming a Health Care Agent, above.)
- An advance directive regarding end-of-life care generally does not authorize the release of the principal’s protected health information. The principal may need to sign a stand-alone HIPAA release if the principal wants to grant trusted individuals access to the principal’s protected health information (see HIPAA Releases, below).
- Depending on state law, an advance directive regarding end-of-life care may not address situations like:
- appointment of a health care agent;
- disposition of remains;
- organ donation; or
- mental health care.
Execution
- Generally, any competent adult may execute an advance directive regarding end-of-life care.
- Execution requirements for an advance directive regarding end-of-life care vary by state. States may:
- require the principal to sign the advance directive in front of two witnesses (for example, Conn. Gen. Stat. Ann. § 19a-575); or
- allow the principal to choose whether to sign the advance directive in the presence of two witnesses or before a notary (for example, Colo. Rev. Stat. Ann. § 15-18-106(1)).
- When state law requires an advance directive regarding end-of-life care to be witnessed, the witnesses typically must be at least 18 years old (for example, 755 ILCS 35/3(b)). State law may also have other restrictions, such as that one or both witnesses cannot be:
- a spouse or blood relative of the principal (for example, § 765.302(1), Fla. Stat.);
- a person appointed as a health care representative for the principal (for example, Tex. Health & Safety Code Ann. §§ 166.032(b) and 166.003(2)(A));
- the principal’s attending physician (for example, Tex. Health & Safety Code Ann. §§ 166.032(b) and 166.003(2)(D)); or
- entitled to any portion of the principal’s estate under the laws of intestacy (for example, 755 ILCS 35/3(e)).
Revocation
- Unless an advance directive regarding end-of-life care states otherwise, it typically is effective until the principal dies or revokes it (for example, Tex. Health & Safety Code Ann. § 166.041).
- A principal, if competent, may typically revoke an advance directive regarding end-of-life care at any time. The requirements for a valid revocation vary by state but typically allow a principal to revoke an advance directive regarding end-of-life care by actions such as:
- signing and dating a document revoking the advance directive (for example, 755 ILCS 35/5(a)(2));
- physically destroying the advance directive document (for example, Colo. Rev. Stat. Ann. § 15-18-109); or
- executing a subsequent advance directive that is materially different from the previous version (for example, § 765.104(1)(d), Fla. Stat.).
