Why do I need an advance directive?
We all face the prospect that, at some time, we will be unable to make decisions for ourselves about our own health care. This incapacity may be temporary or it may be permanent. It may be the result of trauma (such as a car accident or sports injury) or the result of a physical or mental illness, or it may come with the decline of old age.
If
you become incapable of making decisions about your care and you have not given someone authority to make decisions for you, or you have not given clear instructions that your doctors have the authority to follow, then there can be much confusion and delay in getting you the treatment you need. You may not, in fact, get the treatment that you want, and you may get treatment that you don’t want. In any event, you will place a huge burden on your family, friends, and health care providers as they are forced to figure out what to do for you.
An Advance Directive can fix this.
What does an advance directive do?
An Advance Directive is a document, recognized under Virginia law (Health Care Decisions Act, Section 54.1-2981. et seq) that allows you to:
(1) appoint another competent adult as your “agent” to make health care decisions for you in case you become incapable of making such decisions for yourself; OR
(2) give specific instructions about the health care you authorize, and the health care you don’t authorize, in case you later become incapable of making an informed decision about ; OR
(3) do BOTH: appoint an agent
and give specific instructions about your future health care. If you do both, your agent will be bound by the instructions you put in your advance directive.
What kinds of health care decisions does an advance directive cover?
It can cover all health care, including mental health care, inpatient
and outpatient care, admission to and discharge from facilities, and
end-of-life health care decisions. What it covers, and who is
authorized to make decisions for you under your advance directive, are
up to you. Go to the Overview section for more on this.
Is an advance directive the same thing as a “Living Will”?
The purpose of the “Living Will” is to allow you to give instructions on whether, and to what extent, you do or do not want “life-prolonging” procedures used when you have a “terminal condition”. The advance directive is set up so that you can include such instructions, and/or allow your agent to make decisions about such procedures for you. The advance directive can also cover, at your option, all other kinds of health care, including mental health care. For more information on what it means to have a “terminal condition”, what is meant by “life-prolonging procedures”, and what your options are regarding life-prolonging procedures, go to the End-of-Life section of this website.
What happens if I don’t have an advance directive and I become incapable of making decisions about my care?
Under Section 54.1-2986 of the Virginia Code, if you are found to be incapable of making decisions about your care and you do not have an advance directive that covers the health care you need, the attending physician may seek the authorization of any of the following persons, in the specified order of priority (that is, you cannot go to the available person(s) in the lower ranking group unless there is no one available in the higher ranking group), to make health care decisions for you: (1) your court-appointed guardian; (2) your spouse (except where a divorce action has been filed and the divorce is not final); (3) your adult child(ren); (4) your parent(s); (5) your adult brother(s) or sister(s); (6) any other relative(s) in the descending order of blood relationship; (7) any adult (except for any director, employee, or agent of a health care provider then involved in your care, who (a) has exhibited special care and concern for you and (b) is familiar with your religious beliefs and basic values and any preferences you have previously expressed about your health care. (Go to the “If No AD” section of this site, and to Section 54.1-2986(A)(7), for more on this.)
This can be very messy: If, under this section, authority is given to your adult children, or your parents, or siblings, or to the remaining relatives (if there are no available adult children or parents), to make decisions for you, they may disagree about your treatment. Family members who don’t really know you may get involved. All of this can delay your treatment, and can result in treatment you did not want. Therefore, it’s very important that you use the Advance Directive to clearly set out your desires regarding your care, and, where possible, to appoint an agent who has the authority to make decisions for you when you can’t make them yourself.
Who decides that I’m incapable of making informed decisions about my care?
The decision that you are incapable of making informed decisions about your care must be made, in writing, by your attending physician, after personally examining you. In most cases, that decision must be confirmed in writing by a second physician, or licensed clinical psychologist, after also personally examining you. This decision that you are incapacitated must be re-confirmed in writing at least every 180 days in order to remain in effect. However, the physicians working with you are regularly assessing your capacity. Once any physician finds, after personally examining you, that you are again able to make informed decisions about your care, then you are back in charge of decisions about your care, and your agent’s authority is suspended. See the “Overview” section of this website, and Section 54.1-2983.2(B).
Do my agent and my doctor have to follow the instructions I put in my advance directive?
Directing your agent: Your agent must follow the instructions that you set out in your advance directive. Because you can’t know in advance what your condition and your treatment needs will be in the future, it’s important that you do not put too many restrictions on the ability of your agent to make decisions for you.
Directing your physician:
Your physician must also follow the instructions you set out in your advance directive, for the most part. However, you cannot dictate to your physician what procedures will be followed or what medications will be prescribed in treating you. Your doctor has the authority to make clinical judgments about what procedures or medications are medically appropriate. However, it can be helpful for you to set out what your treatment preferences are, just as it is helpful now when you talk with your doctor about your treatment.
Refusing treatment:
Your physician and your agent cannot override your refusal of treatments that you set out in your advance directive, except in very limited emergency situations.
For more in this issue, see the “
Instructions” section of this website.
Does my advance directive have to be in a special form, or notarized, or written by an attorney? Where can I get a form? Can I use copies?
Virginia law does not require that your advance directive be in a particular form. However, to make sure that your agent has the proper authority to act, and that your health care providers will honor your advance directive, it is helpful to use (and modify, as you choose) some of the advance directive forms that have been developed by the Virginia Bar Association and/or the Virginia Hospital and Healthcare Association. You can look at those forms by going to the “Forms” section of this website.
To be valid, your advance directive must be signed by you and 2 adult witnesses.
Your advance directive does not have to be prepared by an attorney.
It does not have to be notarized to be valid. (Note: Virginia is developing an Advance Directives Registry. An advance directive will have to be notarized to be placed in the Registry.)
Photocopies of an advance directive are as valid as the original and must be honored.
What if I change my mind about having an advance directive?
Before you become incapacitated: You can revoke your advance directive at any time before you are found to be incapable of making informed decisions about your care. The key thing is that you must make sure that your agent and your health care provider(s) are informed. You can write them a letter, tell them directly, or tear up the form (or have someone do it in your presence) in front of them. You can modify your advance directive as well, but each modification must be signed by you and 2 adult witnesses, and given to your agent and providers. See the “Revoking” section of this website, and Section 54.1-2985.
After you become incapacitated:
You cannot revoke your advance directive after you have become incapable of making informed decisions. The whole point of the advance directive is to ensure that your instructions from the time that you have capacity remain in effect after you become incapacitated.
What if I object to my agent after I become incapable of making informed decisions about my care?
Removing your agent: Even after you become incapable of making informed decisions, if you object to your agent continuing as your agent, your appointment of that agent ends, and that person can no longer make decisions for you under your advance directive, unless you state otherwise in your advance directive.
Keeping your agent:
You can state in your advance directive that your agent can continue acting as your agent even if you object after you have become incapable of making informed decisions about your care. It makes sense for you to have this statement. If you have lost the capacity to make informed decisions about your care, your objection to your agent is likely due to that same incapacity, and likely is not a sound decision. When you remove your agent, you lose the help of the person who is trying to carry out your wishes about your treatment.
See the “
Protest” section of this website.
What if I object to proposed treatment after I become incapable of making an informed decision?
End-of-life matters: If you object to the withholding or withdrawal of life-prolonging procedures, even when your instructions state that those procedures should be withheld or withdrawn, your objection will always be honored, regardless of how incapacitated you might be.
Mental health care:
If you object to proposed mental health care, including proposed psychiatric hospitalization, your agent cannot authorize such care over your objection, unless you have specifically authorized your agent in your advance directive to give consent to such treatment over your objection. This is sometimes referred to as a “Ulysses Clause”. See the “Agent Powers” section of this website for more on this.
Note:
mental health care can still be authorized over your objection, even without a Ulysses Clause, through other procedures - for example, involuntary commitment for psychiatric hospitalization, and a court order or authorization under the human rights regulations for medications or other treatment when your condition or behavior create an emergency placing you and/or others at risk of harm. However, these are very limited, emergency-based circumstances.
General health care:
If you object to other proposed health care, your agent cannot authorize such care over your objection unless (1) you have specifically authorized your agent in your advance directive to give consent to such treatment over your objection (Ulysses Clause, explained in “Agent Powers”), or (2) the treatment is recommended by your doctor as being medically appropriate and legal, and is approved by the patient care consulting committee for the facility where you are a patient, as being ethically appropriate and consistent with your stated values.
For more on this, see the “
Protest” section of this website, and Section 54.1-2986.2.