What is an Advance Directive?
An advance directive is a legal document that outlines a person's healthcare preferences when they cannot communicate their wishes. It includes instructions about the types of medical treatment they desire or refuse and appoints a healthcare proxy to decide on the principal's behalf.
This written document is crucial when a person (the principal) is incapacitated due to illness, a serious injury, or the late stage of some incurable disease and can't express their wishes. In those scenarios, an advance directive form is designed to guide both the physician and the family of the principal in making decisions that align with their values and preferences.
In this article, we will explore the purpose and meaning of advanced directives, their types, and when to use them. We will also provide some advance directive examples of situations where this document is often used.
Advance Directive vs. Living Will
Advance directive and living will are two terms often considered synonymous, but there’s an important distinction between these two legal concepts.
The advance directive form actually consists of both a “Living Will” and a “Medical POA.” The living will component outlines explicitly an individual's preferences for medical treatment in the event of specific illnesses. It empowers them to choose whether to receive particular medical interventions or decline any treatment altogether.
The other component of an advance directive form, a medical POA, designates a healthcare attorney-in-fact to advocate for these preferences and make decisions on behalf of the principal.
In contrast, a living will is a specific legal instrument that focuses only on articulating the principal's preferences for medical treatments under circumstances where they cannot communicate them.
So, while both documents concern medical care preferences, an advance directive encompasses broader legal authority by combining personal healthcare decisions with the appointment of a trusted representative to ensure those wishes are upheld.
Advance Directive Forms by State
Here, you have an advance directive template for each state in the USA, just a few clicks away.
What is Included in an Advance Directive?
An advance directive typically includes these essential parts:
Advance Directive Elements
Durable medical power of attorney (healthcare proxy). This section designates a person who will make medical decisions on behalf of the principal. It also specifies when the appointed agent's authority to act on behalf of the principal takes effect.
Living will. This section outlines the principal's preferences for medical treatment in various health scenarios, especially in case of a terminal illness or an irreversible vegetative state.
Healthcare directives. This part provides specific instructions for healthcare providers, including specifying whether the principal wishes to receive life-saving treatment if their heart or lungs fail (Do-not-resuscitate order or DNR for short) or whether the principal agrees to organ donation. It can also specify where the principal prefers to receive care, like at home or in a hospital facility.
Religious or spiritual preferences. This section allows the principal to express any beliefs or values that should be considered by medical providers when making health care decisions.
How to Make an Advance Directive?
To successfully create a valid advance directive, follow these steps:
#1. Choose an Agent
The first step is to decide who your healthcare proxy (agent) will be. We already stated that an agent should be someone close to you and trustworthy. Make sure an agent meets legal requirements, i.e., to be an adult of sound mind, and have no conflicts of interest between your wishes and their intentions.
So, before choosing an agent, discuss it with your family members, friends, and doctors to make sure you are making the right choice. You can also select a secondary agent who will step in if the primary agent cannot carry out your wishes.
#2. Determine the End-of-Life Preferences
Next, determine your end-of-life preferences, which means deciding what medical treatments you find acceptable and which ones you are strictly opposed to. Consider different scenarios, as situations can become more complex than you initially planned, or conversely, simpler measures might be effective.
Take your time when deciding and discuss your preferences with your agent, family, and doctor to make sure you have made an informed decision.
#3. Fill Out the Advance Directive Form
Once you have decided on your agent, their authority, and your wishes, it's time to fill out the advance directive form. The easiest way to do so is to use our Contracts.net builder, which allows you to create a professional advance directive medical form with minimal time and effort.
This document always includes your personal information, details about your health state, the name of your healthcare agent, and detailed instructions about your medical care preferences.
#4. Sign and Acknowledge the Document
After filling out your form, you need to sign and date it in the presence of witnesses or a notary public, depending on your state's requirements. Otherwise, the document's validity might be questioned, leading to potential disputes.
Below this section, you will find signing requirements laws for each state. Note that witnesses cannot be the principal or agent's relatives, nor can they be beneficiaries in the principal's last will and testament.
#5. File the Advance Directive
Finally, once your advance directive is signed and acknowledged, you should file it with your healthcare proxy, family members, and your primary care doctor. Remember to keep a copy for yourself in a safe place.
Some states, like California, Montana, and Virginia, allow you to register your advance directive for healthcare with a state registry or database, making it accessible for healthcare providers when they need it.
Advance Directive Laws
Each state outlines specific requirements for how advance directives must be signed, witnessed, or notarized. You can find details on these requirements in the table below:
State | Signing and Notarization Requirements | Laws |
Alabama | Two witnesses | |
Alaska | Two witnesses or a notary public | |
Arizona | One witness or a notary public | |
Arkansas | Two witnesses or a notary public | |
California | Two witnesses or a notary public | |
Colorado | Two witnesses or a notary public | |
Connecticut | Two witnesses | |
Delaware | Two or more witnesses | |
Florida | Two witnesses | |
Georgia | Two witnesses | |
Hawaii | Two witnesses or a notary public | |
Idaho | N/A | N/A |
Illinois | Two witnesses | |
Indiana | Two witnesses or a notary public | |
Iowa | Two witnesses or a notary public | |
Kansas | Two witnesses or a notary public | |
Kentucky | Two witnesses or a notary public | |
Louisiana | Two witnesses and accompanied by a written psychiatric examination | |
Maine | Two witnesses | |
Maryland | Two witnesses | |
Massachusetts | Two witnesses | |
Michigan | Two witnesses | |
Minnesota | Two witnesses or a notary public | |
Mississippi | Two witnesses or a notary public | |
Missouri | Two witnesses | |
Montana | Two witnesses | |
Nebraska | Two witnesses or a notary public | |
Nevada | Two witnesses and a notary public | |
New Hampshire | Two witnesses or a notary public | |
New Jersey | Two witnesses or a notary public | |
New Mexico | Only principal | |
New York | Two witnesses | |
North Carolina | Two witnesses and a notary public | |
North Dakota | Two witnesses or a notary public | |
Ohio | Two witnesses or a notary public | |
Oklahoma | Two witnesses | |
Oregon | Two witnesses or a notary public | |
Pennsylvania | Two witnesses | |
Rhode Island | Two witnesses | |
South Carolina | Two witnesses in the presence of an authorized officer | |
South Dakota | Two witnesses or a notary public | |
Tennessee | Two witnesses or a notary public | |
Texas | Two witnesses or a notary public | |
Utah | One witness | |
Vermont | Two or more witnesses | |
Virginia | Two witnesses | |
Washington | Two witnesses or a notary public | |
Washington D.C. | Two witnesses | |
West Virginia | Two witnesses and a notary public | |
Wisconsin | Two witnesses | |
Wyoming | Two witnesses |
Does an Advance Directive Guarantee Your Wishes?
An advance directive guarantees your wishes within certain limits. Your healthcare proxy and doctors will try to honor your medical choices outlined in the directive, but not at any cost.
Even if your decision seemed clear, it may not be possible or safe if later circumstances reveal complexities that suggest a different approach would be more appropriate.
On the other hand, healthcare providers are not legally obligated to follow your advance directive because it is not a legally binding document. Therefore, a healthcare provider may refuse to take a medical decision stated in an advance directive for the following reasons:
If it violates the healthcare institution's policy
If it goes against accepted healthcare standards
When it conflicts with the doctor's conscience
In such cases, the healthcare provider must promptly inform you and ensure you receive appropriate care from another provider who can accommodate your decision.
What Happens If You Don’t Have an Advance Directive?
If you don't have an advance directive, healthcare decisions may be made by family members or appointed doctors, as determined by state law. This often will be your spouse, parents if capable, adult children, or close relatives and friends.
State laws recognize the importance of advance directives and typically define who can be a healthcare proxy if you haven't chosen anyone. However, there is still a risk that decisions may not align with your wishes, even if made by someone close to you, leading to the potential treatment you would prefer to refuse or not receiving the desired care.
If a doctor is appointed to make decisions, they will base them on standard protocols or medical necessity, which still may not reflect your preferences.
Those are some of the reasons that indicate that having an advance directive is the best decision because it provides clarity and prevents potential confusion or misunderstandings among family members and healthcare providers.
Advance Directive FAQ
The three often used types of advance directives are a living will, which ensures healthcare decisions are made according to the individual's wishes; a durable power of attorney, which authorizes an agent to act on the individual's behalf if the individual is incapacitated; and an advance healthcare directive, which combines both a living will and a durable power of attorney.
Generally, advance directives do not expire once they are created. However, the principal can revoke or modify them at any time according to their new preferences.
You do not need a lawyer to make an advance directive. There are templates available that you can download and adjust to your individual preferences. However, principals can choose to involve a lawyer to assist in drafting this document.
Anyone who is 18 years old or older should consider making an advance directive because, at any moment, one can become unable to decide for themselves. Through an advance directive, individuals make it easier for their loved ones to act according to their wishes in such situations.
Generally, a family cannot override an advance directive because this document outlines the principal's wishes regarding healthcare decisions and appoints a person who will act according to those wishes. However, if the family can prove the specific advance directive is invalid, they can attempt to override it.