Both the Department of Defense (DOD),
and the Department of Veterans Affairs (DVA) through its Veterans Health
Administration (VHA), recognize the importance of advance directives as
tools to help people plan for and manage health care crises in which
they have become incapable of making informed decisions about their
needed care.
Making Sure Your Advance Directive Will Be Recognized and Enforced - the DOD Approach
A key concern for many active duty military and veterans and their
families is that, because they make frequent moves, living in
different states that have different laws, forms and requirements
regarding advance directives, the advance directives they have drafted
may not be recognized or followed in the state where they happen to be
living. Congress, through 10 U.S.C. 1044c, addressed that concern for
active duty military and their dependents by specifying that every state
must recognize and follow an advance directive developed under that
code section with the help of legal counsel authorized to provide
military legal assistance. That statute also specifies that the DOD
advance directive is not required to have a particular form or content,
or to be recorded in a particular way, in order to be valid. While DOD
health care providers are required to educate their military patients
about advance directives, they are not required to assist their patients
in completing one. DOD expects that to be done through legal counsel.
In addition, the DOD has not developed a recommended advance directive
form for individuals to use.
Making Sure Your Advance Directive Will Be Recognized and Enforced - the
DVA Approach
The Department of Veterans Affairs (DVA) has a different
approach. There is no federal law that gives nationwide validity to a
DVA advance directive. However, the DVA, through the efforts of the
National Center for Ethics in Healthcare (which is part of the Veterans
Healthcare Administration) has developed a suggested advance directive
form (VA Form 10-0137) that attempts to meet the requirements of - and
therefore may be valid in - every state in the union. (Check with your
non-VA health care provider to confirm this.) In addition, Federal
Regulations (see 38 CFR Section 17.32) require that, when a veteran has
completed a state-based advance directive form (for example, the form
provided in Section 54.1-2984 of the Virginia Code), DVA health care
staff must make every effort to recognize that form as valid and to
follow the directives given by the patient in that form (to the extent
that they are not contrary to DVA policies).
Active Duty Military and Dependents: The Department of Defense (DOD) Authorized Advance Directive
Valid in Every State:10 U.S.C. Section 1044c specifies, in subsection (a)(2), that advance directives executed by active duty military personnel, or their dependents, under the authority of that section, must be honored in every state as being in compliance with the advance directive laws of that state.
No Specific Form or Wording Required:10 U.S.C. Section 1044c states, in subsection (a)(1), that advance directives for active duty military and dependents are “exempt from any requirement of form, substance, formality, or recording” set out in any state laws on advance directives. In addition, the federal law itself does not have any requirements of form or substance for the military advance directive. (Note: Subsection subsection (c)(1) of 10 U.S.C. Section 1044c states that the attorney drafting a DOD advance directive “shall” include a statement in the document that sets out [per subsection (a)(1)] that under federal law the advance directive is exempt from the requirements of the state regarding form, substance, etc. Subsection (c)(2) then provides that, even if the attorney fails to include that statement, the DOD advance directive remains valid in all states.
Drafted with Military Legal Assistance: 10 U.S.C. Section 1044c appears to presume that the DOD advance directive will be drafted with the assistance of legal counsel specifically authorized to provide military legal services. 10 U.S.C. Section 1044, of which Section 1044c is a part, makes provisions for legal assistance to military personnel. It also ensures that a variety of important civil legal documents - powers of attorney, advance directives, and wills - that military personnel should complete (for their benefit and the benefit of their families) - are recognized as valid and are honored and enforced by the civil authorities in all 50 states.
DOD Advance Directive Defined as a Written Document Having Either or Both:
(1) a Health Care Power of Attorney
(2) a Living Will: Subsection (b) of 10 U.S.C. Section 1044c defines an advance directive as “any written declaration that—
1. Sets forth directions regarding the provision, withdrawal, or withholding of life-prolonging procedures, including hydration and sustenance, for the declarant whenever the declarant has a terminal physical condition or is in a persistent vegetative state;
2. Authorizes another person to make health care decisions for the declarant, under circumstances stated in the declaration, whenever the declarant is incapable of making informed health care decisions.”
What’s missing in this definition: The DOD definition of an advance directive does not include giving instructions ahead of time about treatments other than life-prolonging procedures (including mental health care). In addition, it does not appear that the statute enables you to authorize another person to make decisions for you about your mental health care in the event of your incapacity. Virginia’s advance directive laws allow you to do both of those things.
Military Health Care Providers Required to Discuss Advance Directives with Patients
The Patient Bill of Rights and Responsibilities in the Military Health System (MHS) sets out the following requirement for military health care providers in regard to advance directives (Section E3.2.2.4.2): “Providers shall discuss the use of advance directives—both
living wills and the durable powers of attorney-with patients and their living designated representative and shall abide by all decisions made by their patients and/or their designated representatives. A provider who disagrees with a patient’s wishes as a matter of conscience shall arrange for transfer of care to another qualified provider willing to proceed according to the patient’s wishes within the limits of the law and medical ethics. Signed advance directives shall become a part of the patient’s medical record.”
Providers Not Expected to Help with Completing an Advance Directive: However, as noted above, it does not appear that the military system requires providers to help military personnel to actually fill out an advance directive form. It is up to the individual to seek out legal assistance in order to complete an advance directive.
Veterans: The Department of Veterans Affairs (DVA) and the Veterans Healthcare Administration (VHA) Commitment to Advance Directives
Advance Health Care Planning assistance to patients required at VA facilities
Section 1004.2 of the VHA Handbook, entitled “Advance Care Planning and Management of Advance Directives”, specifically requires health care providers at VA facilities to actively engage with patients regarding advance care planning and to help patients complete advance directives, and it requires facility directors to take specific steps to ensure that this is done.
Advance Directives as Part of VHA’s National Health Care Ethics Policy
The Department of Veterans Affairs (DVA) has established a National Center for Ethics in Health Care. This Center has set out a number of policies that both direct and guide health care that is provided to veterans through VA facilities. The Center’s policies are strongly patient-centered and implement the mandates regarding patient care that are set out in 38 CFR Section 17.32. The Center’s web page, which includes information about advance directives and links to the VHA handbook, advance directive forms, and educational materials, can be found by clicking here.
VHA Handbook - Patient Centered Philosophy of Treatment Includes Advance Care Planning
On the first two pages of Section 1004.2 of the VHA Handbook, the Handbook makes the following key statements about how advance care planning is essential to patient-centered care and about the role of VA staff in helping patients directly with advance care planning and completing advance directives:
1. “VA policy regarding advance care planning is consistent with the Department’s commitment to ensure that patients’ values, goals, and treatment preferences are respected and reflected in the care they receive. VA is committed to creating a health care environment that promotes patient-centered care and shared decision making, an ongoing collaborative process between practitioners and patients or their surrogates, to which the practitioner contributes knowledge of medicine and the patient contributes values, preferences, and health care goals. Practitioners who speak with their patients about their preferences are better equipped to faithfully interpret those preferences if, or when, the patient loses decision-making capacity.”
2. “Patients and health care providers need encouragement, assistance, and resources for thinking and talking about patients’ preferences regarding future health care choices. Patients need information and guidance to understand the implications of their preferences and to express them unambiguously. For those who wish to complete an advance directive and for those who have already done so, policies and mechanisms are needed to ensure appropriate identification, documentation, and handling. Thus, VHA staff has an important role in advance care planning.”
Responsibility of VA Health Care Staff to Assist
Primary care practitioners are required to raise the issue of advance care planning with all patients who have decision-making capacity, and to either assist patients directly or refer them to other VA staff designated by facility director when patients request more information and/or assistance in completing an advance directive. Trained staff must be available to patients in all clinical settings to provide this assistance.
Web-Based Assistance Available
The VHA has developed a comprehensive web site for veterans entitled MyHealtheVet which can be accessed by veterans, after they have created a personal account, at http://www.myhealth.va.gov. Included in the materials on that site are exercises, under the title, “Your Life, Your Choices” , which assist the veteran in making advance care planning decisions.
FORMS
1. The VHA’s own VA advance directive form
The VHA has developed VA Form 10-0137, entitled “VA Advance Directive: Durable Power of Attorney for Health Care and Living Will”. As the title indicates, the form allows you to do either or both of the following: (a) appoint a health care agent to make health care decisions for you in the event you become incapacitated; (b) give specific directions regarding your health care in the event you become incapacitated.
May be valid in all states, but check with your provider: The VA form was drafted in an effort to comply with the requirements of all 50 states for advance directives, so that veterans who complete this form could use it in health care settings other than VA facilities. Since laws frequently change, you need to check with your non-VA health care provider to confirm whether your VA advance directive form meets the requirements of the state where you are receiving treatment from a non-VA provider.
Attachment available to address mental health treatment: The VHA has also developed an optional attachment to the VA advance directive form that addresses mental health treatment issues.
LIMITS OF THE MENTAL HEALTH CARE ATTACHMENT: It is not clear how enforceable the mental health treatment attachment may be, either in the VA setting or in other health care treatment settings, for several reasons: First, the mental health treatment attachment has no provisions for witnesses to sign it. The VA, and all the states, require the signatures of two witnesses for an advance directive to be valid. Second, approximately 24 states make no provisions for mental health treatment in their advance directives, so that in health settings outside of VA facilities health care providers may not be authorized by law to honor your wishes in the VA mental health treatment attachment.
2. State advance directive forms
38 CFR Section 17.32(h) states that “[a]n advance directive that is valid in one or more States under applicable State law, as defined in paragraph (a) of this section, will be recognized throughout the VA health care system.” In paragraph (a), the “applicable state law” is deemed by the DVA to include “the law of the State where the advance directive was signed, the State where the patient resided when the advance directive was signed, the State where the patient now resides, or the State where the patient is receiving treatment.” The intention of this language is to provide as many ways as possible to find that a patient’s advance directive is valid, so that the patient’s wishes can be followed. This paragraph goes on to say that the “VA will resolve any conflict between those State laws regarding the validity of the advance directive by following the law of the State that gives effect to the expressed wishes in the advance directive.”
3. DOD advance directive forms
Any advance directive form completed under the authority of 10 U.S.C. 1044c (the DOD form discussed above) is honored by VA facilities and staff.
When a Patient Has More Than One Executed Advance Directive
The VHA Handbook provides that, if a patient has more than one valid advance directive (e.g., a VA advance directive and a State-authorized advance directive), both apply. If valid directives contain conflicting information, the most recent one (as determined by examination of the date applied by the patient at the time the document was signed) prevails.