Every Adult in Virginia should have an Advance (Medical) Directive
Every adult faces the prospect that, at some time, they will be unable
to make decisions for themselves about their own health care. This
incapacity may be temporary or permanent. It may be the result of
trauma, such as a car accident or sports injury, or a physical or
mental illness, or it may come with the decline of old age. Through an
Advance Directive, you can authorize someone you trust to be your
“agent” to make health care decisions for you in the event you become
incapable of making an informed decision about your care, or you can
give specific instructions about the care you want to receive or not
receive, or you can do BOTH.
When you fail to provide guidance about your care in the event you
become incapable of making informed decisions about your care, your
family members, friends and health care providers are often burdened by,
and sometimes end up in conflict over, who should have the authority to
make health care decisions for you, and what those decisions should
be. Such burden and conflict can be particularly difficult if you have a
terminal condition, and have become incapacitated, and have failed to
provide guidance ahead of time on how you want to be treated. By
completing an Advance Directive, and putting a copy of it into the hands
of your doctor(s) and appropriate family members and/or friends, you
can relieve them of this burden, avoid possible conflict, and better
ensure that you will be treated the way you want to be treated.
The Authority for Advance Directives, and a Suggested Form for an Advance Directive, are Set Out in the Virginia Code
The provisions for an Advance Directive are set out in the Virginia
Health Care Decisions Act (Section 54.1-2981 through 54.1-2997), which
addresses how health care decisions can be made for a person when that
person is incapable of making informed decisions. A suggested form for
the Advance Directive is set out in Section 54.1-2984.
Virginia’s Advance Directive Enables You to Create One or More of the Following in a Single Document:
1. A “Health Care Power of Attorney”, in which you appoint and authorize an “agent” to make health care decisions for you in the event you are incapable of making informed decisions about care, and in which you set out the scope - and limits - of the agent’s authority.
2.Specific Authorizations and/or Refusals Regarding Health Care in the Event That You Become Incapable of Making Informed Decisions, with these “directives” also limiting the authority of your agent, if you have appointed one.
3. A “Living Will” in which you give specific instructions on what health care measures you authorize - and do NOT authorize - in the event that you are in an end-of-life situation and are incapable of making informed decisions about end-of-life health care.
4.An Anatomical Gift or Organ Donation in which you can authorize an agent to make a gift of your body and/or certain organs and tissue, subject to any conditions or limitations that you may set, in the event of your death.
Each of These is Optional
If you use the advance medical directive “suggested” form from the Virginia Code, and most other similar forms, you will see that you can cross out any of the sections, or portions of the sections, that you do not want to include in your Advance Directive. You can customize your advance directive to fit your needs and desires.
You can Make Specific Provisions Regarding Mental Health Care as well as Physical Health Care
Under this advance directive, you have the option to give your agent the authority to consent to mental health care for you, including admission to a psychiatric hospital for treatment, in the event that you later need such care but have become incapable of giving informed consent to it. These provisions can be particularly important for the following situations: (1) if you think you could have a disabling dementia in the future, and you want to authorize future care for that condition in case you become incapable of making informed decisions about your care; (2) if you have a mental illness and want to arrange for your care in the event your condition declines, and you need psychiatric hospitalization and/or a change in medications but you have become incapable of giving informed consent to such treatment.
If you give an agent the authority to consent to certain mental health treatment for you in the event of your incapacity in the future, you may be able to obtain the treatment you need without going through the court proceedings that otherwise would be required to authorize such care. In addition, through the advance directive you can give specific directives ahead of time regarding the mental health treatments to which you do consent, and those to which you do not consent, in the event you become incapacitated. Your agent will be bound by those directives. (There are some limits and exceptions to this provision, and they are discussed in the later sections.)
An Advance Directive Must Be Signed, Witnessed, and Distributed
Signing and witnessing - In order for your advance directive to be valid, you must sign it in the presence of two adult witnesses (which may include a spouse and/or blood relatives, and/or employees of a health care facility or doctor’s office who are acting “in good faith [see definition of “witness” in Section 54.1-2982]). The witnesses must also sign the advance directive. (See Virginia Code Section 54.1-2983.) There is no requirement in the statute that the signatures must be notarized, or that the advance directive must receive any formal certification, in order for the advance directive to be valid. (There are plans for a statewide Advance Directive Registry, in which advance directives will have to be notarized in order to be registered, but that registry does not yet exist.)
Distributing
- Your treatment providers, and your agent (if you appoint one) can’t follow your advance directive if they don’t know about it. It’s vital that you give copies of your signed and witnessed advance directive to your doctor, your agent, members of your family, and your local hospital. Your doctor is required to make your advance directive a part of your medical record once the doctor receives it. If you become incapacitated before you are able to give your advance directive to your doctor, any other person can notify the doctor of your advance directive, and the doctor is required to respond to that notice. (See Section 54.1-2983) A treatment provider is not liable for actions he or she takes that are contrary to your advance directive if that provider did not have actual notice of your advance directive. It is a good strategy to have a card in your wallet or purse that confirms that you have an advance directive, and that identifies your agent (if you have one).
Presumption that you have the capacity to make the advance directive: Every adult who makes an advance directive is presumed to have the capacity to make one. The fact that you have been diagnosed as having a mental illness or other condition does not, by itself, change that presumption. Anyone who wants to challenge the validity of your advance directive, or any part of it, has the burden to prove that you lacked the capacity to make it.
How an Advance Directive Becomes Activated and De-Activated
When an advance directive is activated to guide your treatment: The terms of an advance directive do not become effective as instructions for your health care providers until you are found to be incapable of making informed decisions about your health care. (The term “incapable of making an informed decision” is defined, along with other key terms, in Section 54.1-2982.) Until that time, you remain personally and directly in charge of your care. As long as you remain capable of making informed decisions, you can make treatment decisions that are contrary to what you have set out in your advance directive. (If that happens, however, you should revise or revoke your advance directive to reflect your new directions about your care.)
Who must decide that you are “incapable of making an informed decision” - Under Section 54.1-2983.2(B), the finding that your are unable to make an informed decision regarding your care, thus activating your advance directive, must be made and committed to writing by your “attending physician”, with written confirmation (following personal examination) by a “capacity reviewer" (currently defined as “a licensed physician or clinical psychologist who is qualified by training or experience to assess whether a person is capable or incapable of making an informed decision”). The “capacity reviewer” cannot be otherwise involved in your care at that time, unless such a reviewer is not available. Certification by a capacity reviewer is not required if you are “unconscious or experiencing a profound impairment of consciousness due to trauma, stroke, or other acute physiological condition”. Your incapacity must be reviewed and confirmed in writing every 180 days for the advance directive to remain activated, unless you (Section 54.1-2983.2(C)). The written finding of any physician, following personal examination of you, that your capacity has been restored, will automatically de-activate the advance directive (Section 54.1-2983.2(D)).
You must be given notice of the doctor’s findings regarding your capacity - Under Section 54.1-2983.2, whenever a finding is made that you are unable to make informed decisions about your care, you are to be personally advised of this by your attending physician. If you have appointed an agent in your advance directive, that agent is also to be advised. Normally, no health care is to be carried out under the authority of the advance directive until this notice is provided. (That may not be possible in emergency situations.)
Procedures Not Covered by Advance Directives
Section 54.1-2983.3 specifies that Advance Directives cannot be used to authorize “nontherapeutic sterilization, abortion, or psychosurgery”.