August 27, 2019 Elder Law

Barriers to Universal Advance Directives

By Charles P. Sabatino

Published in Bifocal, Vol. 40, Issue 4 (March-April 2019)

Health care advance directive laws vary quite a bit from state to state. That’s not new news to anyone, but why is it so?

The idea of using a legal document to communicate one’s wishes about future health care decisions is an idea that took root in the 1970s, first in California, and quickly spread to all states in the form of legislation creating living wills and health care powers of attorney-- documents we now generically call health care advance directives.

One of the negative consequences of this evolution is a hodgepodge of differing legal requirements for the forms themselves and their language, execution requirements, permissible options, and prerequisites for effectiveness. Not surprisingly, the National Academy of Medicine in its seminal 2015 report, Dying in America, found that. “The many and varied requirements embedded in state laws covering advance directives also discourage their completion.”1  The Uniform Law Commission attempted to break through the Balkanized terrain of laws by creating a remarkably simple, consumer-friendly Uniform Health Care Decisions Act twenty-five years ago in 1993, but states have largely ignored it. Nevertheless, there have been small steps taken by states toward simplifying their laws.

In a recent issue of the Journal of Law, Medicine and Ethics,[1] this author reviewed state advance directive legislation with the goal of measuring of how far we have come in creating user-friendly state advance directive laws. This was done by identifying the range of prerequisites and formalities imposed by state laws for a valid advance directive. The more state advance directive laws impose detailed, form, language, and detailed execution requirements, the more intimidating and confusing advance directives become for the average adult and the more difficult it becomes to publish advance directive tools and forms that adults in all states can choose to use without worrying about their validity in other states. No one documentation approach to advance care planning suits everyone, so having a wide variety of tools and documentation options unencumbered by overly legalistic requirements could greatly expand the public’s willingness to engage in advance care planning and document their wishes in an advance directive.

The review focused primarily on health care powers of attorney (HCPA), documents in which an individual (referred to as the principal) appoints a health care agent or agents (also called proxy, surrogate, representative), authorized to make health care decisions for the individual in the event of incapacity. HCPAs also allow the principal to include instructions or guidance for decision-making.  

The author reviewed the HCPA laws in the 50 states and the District of Columbia in effect as of January 1, 2018. A key criteria for measuring the user-friendliness was the extent to which a single advance directive could meet the requirements for validity in every jurisdiction. The Five Wishes® advance directive was used as the test device for this exercise because it has been in national distribution since 1998 as a universal advance directive and is widely known.

The review discovered six state law requirements in health care power of attorney statutes that pose barriers of varying difficulty to universal validity under state laws. Three of these elements or barriers were considered surmountable with some effort in drafting: (1) proxy/agent qualifications; (2) witnessing requirements and qualifications, and (3) the timing of commencement of the agent’s authority. Five Wishes surmounts the first two by including the cumulative list of all state requirements or disqualifying conditions for proxy/agents and witnesses. The trade-off of course is greater complexity in instructions. For example, the review found at least 11 different categories of witness disqualifications used across the states, so including the cumulative list and instructions on the form is feasible but more cumbersome than should be necessary.

One venue in which the cumulative list of witness disqualifications does not universally work is an institutional setting such as a hospital or nursing home. Seven states have idiosyncratic, additional requirements for executing a HCPA in differently defined institutional situations. Meeting all the requirements in a common document goes beyond workability.

The third barrier, regarding the commencement of the agent’s authority, was addressed by making to agent’s authority commence upon the decisional incapacity of the principal, because that is either required or an option in all states—despite the fact that about half the states permit an immediately effective HCPA if so stated in the document.

The other three barriers were considered insurmountable and directly undercut the possibility of a universally valid advance directive: (4) mandatory forms requiring substantial compliance (six states); (5) unique mandatory notices that must accompany any form (4 states); and (6) mandatory language to enable certain authority (2 states), such as Indiana’s requirement that special language verbatim language - 169 words in length – be included if the document grants authority to withhold or withdraw any health care.

The following Table breaks down the states that pose these three serious barriers that are fatal to the possibility of flexible, consumer friendly “universal” forms such as Five Wishes.

Fatal State Law Barriers to a Universal Health Care Power of Attorney 

View table

The states that require substantial compliance with their statutory form could eliminate the restrictive impact of that mandate without legislative change if a court or an attorney general’s opinion were to render a practical interpretation of substantial compliance to mean compliance with the signature, dating, and witness requirements under their statute. But to date, there has been no interpretive guidance.

Oregon has partially solved the problem in its law by providing a savings, stating that a non-compliant advance directive “shall constitute evidence of the patient’s desires and interests.” This eliminates the legal barrier to using other forms, but it still leaves uncertainty about how compliant health care providers will be with a non-statutory form in practice.

The mandatory notice and prescribed language barrier states will need legislative change to eliminate those barriers. The good news is that a carefully drafted multi-state HCPA complaint with the law in 41 States and the District of Columbia is currently possible.  But, the mantra for progress should be “simplify, simplify, simplify.” In health care decision-making, a goal of creating precise legal forms misses the mark. The goal is to create tools that make it easy for individuals to communicate their wishes in whatever way is most comfortable, genuine, and effective for that unique individual. To do that, let a thousand flowers bloom.

Read journal article on which the above summary is based.

The opinions expressed therein represent the views of the author and not the American Bar Association.

Charles P. Sabatino, “Overcoming the Balkanization of State Advance Directive Laws,” 46(4) J. Law, Medicine and Ethics, 978 ( 2018).