Advance Directive

An advance directive is a written instruction about your own medical care that operates when you cannot make or communicate decisions. Federal law supplies the definition, and it names the two main members of the category in the same sentence: 42 USC 1395cc(f)(3) provides that an advance directive means "a written instruction, such as a living will or durable power of attorney for health care, recognized under State law (whether statutory or as recognized by the courts of the State) and relating to the provision of such care when the individual is incapacitated." The split is between instruction and agency. A living will tells clinicians what you want. A healthcare power of attorney names a person to decide. The category also picks up other documents states recognize, including combined forms that do both, mental health advance directives, and in some places declarations about anatomical gifts.

The confusing part of this subject is that the documents are state creations and the only federal statute is about hospitals. The Patient Self-Determination Act, enacted in 1990 and codified at 42 USC 1395cc(f), imposes five duties on every provider and health plan participating in Medicare or Medicaid, with respect to all adult patients. The provider must:

• give each adult written information about their rights under state law to make decisions about their care, including the right to accept or refuse treatment and to formulate advance directives, and about the provider's own policies for implementing those rights;

• document in a prominent part of the medical record whether or not the individual has executed an advance directive;

• not condition care or otherwise discriminate against an individual based on whether they have executed one, with the statute adding that this "shall not be construed as requiring the provision of care which conflicts with an advance directive";

• ensure compliance with state law on advance directives at its facilities; and

• provide education for staff and the community on the subject.

Subsection (f)(2) fixes the moment each of these has to be discharged, and it differs by provider type: a hospital at admission as an inpatient; a skilled nursing facility at admission as a resident; a home health agency in advance of the individual coming under its care; a hospice at initial receipt of care; and a Medicare Advantage or similar organization at enrollment. Subsection (f)(4) cross-references 42 USC 14406, a construction rule concerning assisted suicide, euthanasia, and mercy killing.

Read that list carefully and the consumer point is plain: it is a duty to inform, not a duty to have one. Being handed a form at a hospital admission desk is the statute operating, not a requirement to sign anything. Nobody may make care conditional on having a directive, and nobody may treat you differently for not having one. The corollary is equally worth knowing: the federal government does not prescribe what your directive says or how it is executed, so everything about the substance comes from the state.

What varies by state, and it is most of it. The formalities of execution, including the number of witnesses, whether a notary is required, and who is disqualified from witnessing. Whether the state publishes a statutory form and whether using it is optional. What the directive may direct, and whether particular elections, notably artificial nutrition and hydration, must be made separately. The default surrogate hierarchy that applies when nobody has been appointed. And whether a directive validly executed in another state will be honored, which is a question for the receiving state's law. The federal definition's own phrasing, "recognized under State law (whether statutory or as recognized by the courts of the State)," is the honest general statement.

A directive is not a medical order, and confusing the two costs people the outcome they wanted. A POLST or MOLST, depending on the state's name for it, is a portable medical order signed by a clinician, translating a patient's wishes into an instruction that emergency personnel can act on at the scene. An advance directive is a legal document expressing wishes; it does not by itself direct a paramedic, and it is generally not designed to be carried or found in an emergency. Someone whose main concern is what happens in an ambulance needs the clinical order, and that conversation happens with a physician rather than with a form.

Where the category fits in a plan. The live guide to estate planning treats four documents as the incapacity half of a plan: a durable financial power of attorney, a healthcare power of attorney, a living will, and an authorization permitting providers to share medical information with the people you name. The first is not an advance directive at all, since it concerns money rather than care. The middle two are. The records authorization is a separate consent document rather than a directive, though it is often signed alongside them and is the one whose absence most often surprises a family at a nurses' station. And the ultimate alternative to having any of them is a court proceeding, which published guardianship describes: public, ongoing, supervised, and available only after capacity is already gone, which is the point at which none of these documents can still be signed.

1. Decide which instruments you want. In practice most people want both: an instruction document and an appointment. They can be separate forms or a single combined one, depending on what the state provides.

2. Use a form valid in the governing state, and follow its execution formalities exactly. This is the step where do-it-yourself documents most often fail, because a missing witness signature can be fatal to an otherwise clear document.

3. Talk to the person you named. The authority is conferred by the document; the content comes from the conversation.

4. Distribute copies to the agent, to your regular physicians, and into the record of any hospital where you are likely to be treated. Under the Patient Self-Determination Act a participating provider must record whether you have one, which only helps if it can also see it.

5. If emergency treatment decisions are the concern, ask about a portable medical order separately. That is a clinical document, not a legal one.

6. Revisit after any significant change. A move to another state, a divorce, the death of an agent, or a new diagnosis are all reasons to redo rather than amend.

A hypothetical, showing the federal and state halves at work. Corinne, 71, is admitted to a hospital for a scheduled procedure. At admission the hospital gives her written information about her rights under her state's law to accept or refuse treatment and to make an advance directive, along with its own policies, and asks whether she has one. That is the Patient Self-Determination Act operating: the hospital owes her the information at that moment because it participates in Medicare. She says she has both a living will and a healthcare power of attorney, and the hospital records the fact in a prominent part of her chart and takes copies. Had she said no, the hospital would still have had to record that answer, would still have had to treat her, and could not have treated her differently for it. Everything about what her two documents actually say, and whether they were validly executed, comes from her state's law, not from the federal statute that produced the conversation at the desk.

Pros

• It keeps the decision with you, or with a person you chose, rather than with a default order set by statute.
• It relieves a family of guessing, which is the practical benefit people actually report.
• It is inexpensive, and many states publish a statutory form.
• Federal law obliges participating providers to ask about it and record it, so the system is at least built to notice one exists.

Cons

• The instruments are state-specific, so a document that works at home is not guaranteed to work elsewhere.
• A written instruction cannot anticipate most medical situations, which is why the appointment half matters more than people expect.
• It only helps if it can be produced, and retrieval fails more often than drafting.
• It is not a medical order, so it does not govern what happens in an ambulance.
• It can only be executed while you still have capacity, so the people most obviously in need of one are often past the point of signing.