Overview
What should happen if you make an advance directive, but later, after you have been found to be incapable of making informed decisions about your care, you protest the health care that you had authorized in your advance directive, or you protest the agent you appointed? In Virginia, the answer can vary, depending upon the kind of decision that is involved and what authority you granted - or did not grant - in your advance directive for decisions to be made over your protest.
Protest Regarding End-of-Life Decisions
In your advance directive, you can direct that, if you are in a terminal condition, where the application of life-prolonging procedures “would serve only to artificially prolong the dying process”, those procedures be withheld or withdrawn and that you be allowed to die naturally, with only the provision of care to provide comfort and alleviate pain. HOWEVER, under Section 54.1-2986.2, if you later protest such withholding or withdrawal of life-prolonging procedures, even though you are, at that time, incapable of making an informed decision about your care, your protest SHALL be honored, and the procedure will NOT be withheld or withdrawn, even if you had authorized your agent to consent to such withholding or withdrawal over your protest in a “Ulysses Clause”. (See “Powers of the Agent” for more information about the Ulysses Clause.)
Protest Regarding Other Health Care Decisions
If Ulysses Clause Has Been Signed - If you included a Ulysses Clause giving authority to your agent to make decisions over your future protest in regard to certain health care (other than end-of-life care), and later, while incapable of making an informed decision, you protest a decision by your agent that is consistent with your advance directive, the agent’s decision can be honored, and will not be overturned by your protest. NOTE: your Ulysses Clause must clearly authorize your agent to make the health care decision that is being protested, and that decision must also be “medically appropriate” and otherwise permitted by law. (See Virginia Code Section 54.1-2986.2)
If Ulysses Clause Has Not Been Signed - If you have given authority to your agent to make decisions in regard to certain health care (other than end-of-life care), but you have not executed a Ulysses Clause covering those decisions, and later, while incapable of making an informed decision, you protest your agent’s decision that complies with the Advance Directive, then:
1. If the decision has to do with mental health care, your protest must be honored. Treatment can be provided over such protest only through other legal mechanisms authorizing such treatment (for example: involuntary commitment, judicial authorization for treatment, emergency treatment authorized by statute or regulation, or, if you are a patient in a state-licensed mental health facility, authorization approved by the facility’s Local Human Rights Committee).
2. If the decision has to do with physical health care, the decision of the agent can be followed if all three of the following occur: (1) your agent’s decision is based on your known beliefs, values and preferences, as expressed in the advance directive, and (2) the care involved is medically appropriate and otherwise permitted by law, and (3) your agent’s decision has been “affirmed and documented as being ethically acceptable by the health care facility’s patient care consulting committee, if one exists, or otherwise by two physicians not involved at that time in your care or in the determination of your capacity to make informed decisions regarding your care. (See Section 54.1-2986.2)
Protest Regarding the Agent Appointed in the Advance Directive
In your advance directive, you can specify that your agent can continue to serve as your agent even if, after you have been found to be incapable of making an informed decision, you later protest having that individual continuing as your agent. If you do not specify this in the advance directive, then any such protest you make, even though you are incapable of making an informed decision, terminates the authority of your agent to make decisions for you under the advance directive. (See Section 54.1-2986.2(E) regarding this.) If you did not identify a successor agent in your advance directive, then a substitute decision-maker for you must be found through other provisions of the Virginia Code. An important statute in this situation is Section 54.1-2986, which sets out standards and procedures on who may make decisions for an incapacitated person in the absence of an Advance Directive or agent.
Revocation of the Advance Directive - not the same as Protest
Section 54.1-2985 of the Virginia Code states that you can revoke your advance directive at any time, if you are capable of understanding the nature and consequences of such action. Revocation can be carried out in any one of three ways: (1) by a signed, dated writing; (2) by the physical cancellation or destruction of the advance directive by you - or by another in your presence and at your direction; or (3) by your oral expression of intent to revoke. You can also, by any of these means, make a partial revocation of the advance directive. In the case of a partial revocation, any remaining and non-conflicting provisions of the advance directive will remain in effect.
Special Note: You have to make sure that the agent and the health care provider know about any such revocation.
Special Note: Your protest of a provision of your advance directive does NOT constitute a revocation of that provision. See Section 54.1-2986.2.