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April 16, 2013 Articles

Demystifying the Advance Health Care Directive

Be prepared in the event you cannot make decisions on your own.

By Carrie L. Anderson

I have a confession: I am a thirty-something attorney, and I do not have an advance health care directive. I suspect that I am not alone. When it comes to my personal life, I, like many of my peers, have fallen short of my professional training and failed to execute this simple, Internet-accessible task. Your partner or spouse probably does not have one either. Perhaps you believe it is something only for your grandparents or parents to consider as they move into their senior years. Deep down, we all know better. This year, I decided to remedy this situation by learning the necessary facts about advance health care directives and drafting one for myself.

In my initial research, I discovered that advance health care directives, living wills, and durable power of attorney for health care not only serve different purposes, but also they are less complicated than one might expect. However, the decisions regarding what to include inan advance health care directive is an entirely different can of worms. By following some basic guidelines, you can save your loved ones unnecessary grief if there ever comes a time when you are unable to make your own medical decisions.

What Is an Advance Health Care Directive, Anyway? 
An advance health care directive is a document that identifies the final wishes of a person; it can be used as an umbrella document to include other legal designations, such as living wills and durable powers of attorney. A living will is a document that covers medical treatment, including death if imminent. A durable power of attorney or a health care power of attorney is simply a declaration designating in writing another person (the “agent”) to act in one’s place (the “principal”) for health care decisions. Although these terms are sometimes conflated, each should be considered individually when declaring your health care wishes.

Why Should I Have an Advance Health Care Directive?
All adults, and all lawyers, should have an advance health care directive. They are essentially free, and most states provide some sort of online form tailored to conform to the particular state’s law. Creating an advance health care directive can be as simple as specifying one’s health care wishes on a sheet of paper. This simple act can avoid expensive litigation and years of heartache for your loved ones and family.

Consider the well-known case of Terri Schiavo. She was a young woman living in St. Petersburg, Florida, who in 1990 suffered massive brain damage and fell into a two-and-a-half-month coma, after which her diagnosis changed to a vegetative state. In 1998, her husband petitioned the Sixth Judicial Circuit Court of Florida to remove her feeding tube. Terri’s parents opposed the action. On March 18, 2005, after extensive litigation, and even involvement by the U.S. Congress and then President George W. Bush, Terri Schiavo was disconnected from the feeding tubes keeping her alive. She died on March 31, 2005.

If Terri Schiavo had executed some sort of advance health care directive, her parents, her husband, and her medical providers would have had guidance as to what she wanted to happen once she lost consciousness in 1990. Instead, a nearly 15-year legal battle ensued, and we will never know what she wanted from her caregivers.

Where Do I Begin Drafting an Advance Health Care Directive?
When starting the process of drafting an advance health care directive, it is best to look at your state-of-residence requirements. Most states provide examples of acceptable advance directives. In Indiana, for example, the requisite language is included in its civil code. Ind. Code § 16-36-4-8.  Texas allows persons, including minors, to designate a “medical power of attorney” who would act under any advance directives regarding medical treatment, including life-sustaining services. Tex. Health & Safety Code § 166 (Sept. 1, 1999). The District of Columbia Hospital Association provides a public advance health care directive form that includes a section to identify a durable power of attorney for health care and make statements about your wishes regarding life-sustaining treatments. With very little effort, you should be able to find examples of an advance health care directive that will best serve your state’s requirements.

As a general guide, the American Bar Association publishes the Consumer’s Took Kit for Health Care Advanced Planning, which provides good “tools” or guides to use when deciding what will go into your advance health care directive. You always can consult an attorney who specializes in advance directives, particularly if your health care treatment wishes are complicated or controversial.

I Will Not Fear Document Drafting
As a lawyer, you may prefer to draft your own documents. A few basic principles can guide you on your way. First, the document must be in writing. You simply cannot tell someone your desires and expect everything to be in order. Oral instructions are helpful, but writing is always best when it comes to legal authority. The writing, at a minimum, should provide health care instructions or name an agent to make decisions for you. Second, your advance directive should be dated and state your full legal name. Third, the document should be signed in front of a notary public. Alternatively, you could sign the document before uninterested witnesses or people that cannot benefit from your estate. Remember that these guidelines are general, and it is best to also review your state’s requirements for advance health care directives.

An advance health care directive is by nature a very personal document, which will vary by individual. Yet, when considering what to include in an advance health care directive, there are a few items that everyone should consider:

  • Do you want a person or a designated agent to decide to continue or withdraw your medical or health care treatment if you are incapacitated? This would include leaving instructions on whether you would want food or water to be administered to you medically or if you would want artificial breathing if you could not breathe on your own.
  • Do you want certain care that may keep you alive to stop at a specific time? This would include instructions saying you want to be kept alive using all medical means or when you prefer the doctors not to revive you.
  • Do you want to donate organs or your body to science?
  • Do you want to restrict or explicitly permit visitors while you are a patient at a health care facility?

Thoughtfully considering the level of detail you want to leave in your advance health care directive will better ensure that your desires are protected.

At the end of writing this, I still do not have an advance health care directive. However, the process is demystified, and I now know that advance health care directives are tools to better plan for my future and protect my family from having to make difficult decisions in my place. Over the next few months, I will work to decipher my desires and decisions for my life. An advance health care directive can be as complicated or simple as you want it—the important thing is to have one. Take the time to consider executing an advance directive and gaining a better claim to responsible adult living.


Carrie L. Anderson is an attorney in Washington, D.C.