Picking the Best Option for You
While Virginia law does not require that your advance directive be in a particular form, it is extremely difficult to make an effective advance directive from scratch. Fortunately, there are free forms available that you can use as your option. Below are 3 options (which are described in more detail later in this page):
Option 1 is based on the "suggested form" in VA Code Section 54.1-2984. While it is comprehensive, it is also long, and does not provide the same guidance and choices for "end of life" matters that the other options provide. Click HERE for this option.
Option 2 is a simplifies version of Option 1, and is ideal for folks who have no major treatment concerns and have an agent they really trust. While it provides helpful guidance and choices for "end of life" matters, it provides little space for general health care instructions and no guidance on organ donation matters. It also does not contain a 'Ulysses Clause" (provided in the other options) in which you can authorize your agent to give consent to treatment over your objection after you become incapacitated. Click HERE for this option.
An Attachment to Option 2 is available. It contains a Ulysses Clause, which gives your agent authority to give consent to treatment over your objection after you have become incapacitated. (For information on why you might want a Ulysses Clause, click here.) The attachment also has a section on organ donation that allows you to give more specific directions on whether and how you want your body and/or organs donated. Click HERE for the attachment.
Option 3 is the most comprehensive, and is designed for persons with major treatment concerns, particularly regarding mental health. It enables you to provide very specific instructions, as well as information that can be critically important to your health care providers. Click HERE for this option.
Option 4 involves using two forms - one that allows you to appoint an agent and provide instructions in regard to general health care (including end-of-life decisions), and one that allows you to appoint an agent and provide instructions in regard to mental health care. This option is intended for persons who have a mental health diagnosis and are concerned that they will experience stigma and discrimination from general health care providers if they include information about their mental health diagnosis on the comprehensive advance directive form provided in Option 3 above. See more about the forms for this option below.
What’s required (and not required) for an advance directive to be valid
1. To be valid, it must be signed by you and two adult witnesses. It also needs to be given to your health care providers. They can’t follow it if they haven’t seen it.
2. Your advance directive does not have to be notarized. (However, once a Virginia statewide registry for advance directives is set up, you can file your advance directive with the registry only if it is notarized.
3. Your advance directive does not have to be prepared by a lawyer. You can do it yourself.
4. Photocopies of your advance directive are valid and can be used and followed.
Customizing your advance directive
It is up to you to decide what health care matters you want to address in your advance directive, and how you want to address them, including what powers you want to give to your agent. However, it’s important for you to make sure that you include the right instructions in your advance directive, so that your wishes can be honored and your agent can make decisions for you as you intend.
You can pick an existing form that best suits your needs, and then modify it to fit your specific needs and desires. You can scratch through items that you don’t want (you may want to put your initials next to any scratch-throughs to make it clear that this is your decision), and you can either write in or attach additional instructions.
Caution: Please think carefully about the consequences for your treatment, and for your agent’s authority, when you either scratch through provisions in these forms or add new language.
Option 1: the “suggested” form from the Advance Directive law (VA Code 54.1-2984)
How to get the form: You can get the form by clicking HERE.
Advantages: This form obviously has the approval of the General Assembly. In addition, it is comprehensive, and sets out clearly, in separate sections, the 5 key components of a complete advance directive: (1) appointment of an agent; (2) powers of the agent; (3) general health care instructions; (4) instructions for end-of-life situations (the so-called “Living Will”; (5) authorizing an agent to donate your body and organs (anatomical gifts). It also includes two separate clauses - which you can choose to use or not use - in which you can authorize your agent to consent to treatment over your objection - one in the case of admission to a psychiatric hospital, and the other in the case of all other forms of health care. Such authorization to make decisions over future objection is often referred to as a “Ulysses Clause”. You can find more information about the Ulysses Clause, and why you may want to have one, by clicking HERE. Finally, the form includes some key definitions and procedures from the Virginia Health Care Decisions Act (HCDA). While there is no legal requirement to include these provisions from the HCDA, having them removes any questions about the meaning of terms or your intent.
Disadvantages: The form is long, and some people may find it hard to get through for that reason, especially if they have uncomplicated needs and already know what they want. In addition, the language in the “Living Will” section creates a presumption that you want to terminate life-prolonging procedures when you have a “terminal condition”. The form also is not set up to allow you to treat separately each of the two end-of-life situations set out in the definition of “terminal condition”. (For more information on end-of-life issues, you can go to the Living Will section of this website.) Finally, the form does not give you a lot of flexibility in giving directions about the donation of your body and/or organs.
A good alternative form: At the Martha Jefferson Hospital website you’ll find a PDF version of an advance directive that differs in a couple of important respects from the suggested form in the Virginia Code. Section III, which is entitled “Health Care Instructions” in the suggested form, is re-titled in the Martha Jefferson Hospital form as “Guidelines For My Agent About My Treatment Choices”, and it contains much more specific statements about your health care options that you can choose to adopt. In addition, the hospital’s version of Section V, regarding organ donations, is much more specific than the “suggested” form, and gives you much more concrete guidance in making decisions about organ donation. The site also has an explanation of the Advance Directive in a question-and-answer format, and it recommends, and includes for your use, a wallet card that you can fill out to show that you have an Advance Directive. (This form was developed by Martha Jefferson Hospital, in conjunction with the University of Virginia Health System.)
Option 2: the “simplified” advance directive form
How to get the form: You can get this form by clicking HERE.
Advantages: This form was developed by a group of attorneys who are
experts in healthcare law. It is only half as long as the “suggested”
form - 2 pages instead of 4. Instead of having 5 separate sections, it
has 2, “Appointment and Powers of My Agent” and “My Healthcare
Instructions”. Under “Healthcare Instructions”, it provides much more
specific guidance on end-of-life decision-making, similar to that
provided in the form developed by the Martha Jefferson and UVA
hospitals. It drops the definitions and procedures that are in the
“suggested” form, but those definitions and procedures still apply.
Disadvantages: Under this form, the powers of your agent include the
power to donate your body and organs as the agent chooses, with no space
provided to limit that authority or give more specific directions.
(However, you can put such directions in the space provided in Section
II(3) on page 2 of the form.) Most significantly, the form does not
include a “Ulysses clause” giving the agent authority to make decisions
over your objection after you have been found to be incapable of making
decisions about your care. The Ulysses Clause can be a very valuable
part of your health care planning, especially if you have concerns about
future dementia, or if you have a history of mental illness, and are
concerned that, when you lose the capacity to make decisions about your
care, you may also object to the care that you need, and that you agreed
to in your advance directive. If you include a Ulysses Clause in
regard to psychiatric hospitalization, for example, it may be possible
for your agent to admit you to a psychiatric hospital to get you care
that you need, even when you are objecting. If your agent does not have
that authority, the only way that you can be treated in a psychiatric
hospital is through an involuntary commitment process. For more on the
Ulysses Clause, click here.
An Attachment to the Option 2 form is available: It contains a Ulysses
Clause, which gives your agent authority to give consent to treatment
over your objection after you have become incapacitated. (For
information on why you might want a Ulysses Clause, click here.) The
attachment also has a section on organ donation that allows you to give
more specific directions on whether and how you want your body and/or
organs donated. Click here for the attachment.
Option 3: the extended advance directive form, with specific information and instructions about physical and mental health care
How to get the form: You can get this form by clicking HERE.
Advantages: This form was developed by healthcare attorneys specifically for persons with chronic/serious physical and/or mental health conditions. While it is very long - 9 pages - it enables you to provide very specific information about such things as: your diagnosed conditions and the medications you are taking; the signs that you may need help; the kinds of interventions that have and have not worked for you; the medications that you agree to take and those that you refuse to take (and why); emergency contacts,; and your preferences regarding treatment (and the reasons for them). This information can be an invaluable guide to your agent and to your healthcare providers when decisions have to be made for you when you are experiencing an emergency. This form is set up to help you have a more specific plan for how to manage emergency situations and avoid bad experiences. This form also includes a well-drafted “Ulysses Clause” in which you can give authority to your agent to consent to treatment over your objection (as you choose to specify in that clause). It also uses the more helpful end-of-life provisions that are found in the “simplified” advance directive.
NOTE: This form is not intended to replicate or replace the WRAP (Wellness Response Action Plan) or the NAMI Peer-to-Peer life planning. Those processes go into more depth in regard to your ongoing life management. What the form does intend to do is to incorporate some key aspects of those processes into this legally enforceable document that guides your agent and your health care providers.
Disadvantages: It is really long, and some people may find that it is too long for them. Also, long though it is, this form, like the “simplified” form, gives your agent full authority to make decisions about the donation of your body and organs upon your death. As in the simplified form, you can modify that power as you choose in the “Instructions” section.
More information: For a Power Point presentation that reviews and explains this advance directive in more detail, click HERE.
Option 4: making 2 forms - one to appoint an agent and provide instructions in regard to general (including end-of-life) health care and and one to appoint an agent and provide instructions in regard to mental health care
How to get the forms: These forms were developed by the staff of the Virginia Office of Protection and Advocacy (VOPA). You can get the VOPA form for general health care by clicking here, and the form for mental health care by clicking here.
Advantages: There are a number of individuals with mental illness who have directly experienced stigma and discrimination in the general medical care they received once their health care providers learned that they had a mental illness. People who have had this experience, or who have concerns about having such an experience, may feel more comfortable using two separate advance directive forms - one to address general health care issues and the other to address mental health care. In addition, some individuals have found that they want one person to be their agent for general (and particularly end-of-life) decision-making, and a different person to be their agent for mental health treatment. For example, a person may feel that his family members, on the one hand, do not understand his mental health challenges and have not been supportive of his mental health care in the way that a close friend has been (hence, the friend is the agent for mental health care), but his family does share his values and is willing to follow his instructions regarding end-of-life care (hence, a family member is agent for general health care).
Disadvantages: The arguments against this approach include the following - (1) it perpetuates the false separation of physical and mental health conditions and treatment, and the stigma and discrimination that go with such separation; (2) it creates a danger of inappropriate and even harmful treatment decisions in care of the person when he or she is incapacitated, especially in medical emergencies and most especially for those who take medications for their mental illness, as there may be harmful drug interactions, or behaviors by the person that the doctor is unable to understand and address because the doctor does not know about the person’s mental health condition.
More information: For more information on the concept of a separate mental health advance directive, often referred to as a “Psychiatric Advance Directive” (PAD) go to the “Psychiatric Advance Directives” page of this website.
A Separate Option for Active Duty Military and Veterans and Their Families
Federal laws and regulations allow active duty military personnel and veterans, and their family members, to complete advance directive forms under the provisions of federal law. This option is discussed on the “Active Duty Military and Veterans and Their Dependents” page on this website.