Advance Directives for Health Care

All but a few states have enacted legislation regarding instruction directives. Such statutes are often termed natural death legislation. Specific provisions vary from state to state. However, the common theme of natural death legislation is support of a patient's right, while the patient is still competent, to sign a written directive concerning the patient's wishes about the use of life-saving or life-sustaining medical treatments in the event of later serious illness and an incapacity to make decisions. Such a directive, often called a living will, protects or immunizes involved health care professionals and treatment facilities against possible civil or criminal liability for withholding or withdrawing medical treatments under the conditions specified in the directives.

Ordinarily, the principal is presumed to have the mental capacity to execute a health care directive and to revoke it, absent substantial evidence to the contrary. Just as is true for the DPOA, the legal force of an instruction directive goes into effect only when the patient, after signing the document, later becomes incapable of making medical decisions. In most cases, it is left to the individual's personal physician to determine when that person has become incapable of making decisions and, therefore, when the advance directive becomes effective.

Most advance directive statutes and forms use the approach of either check-off options for particular forms of treatment (e.g., "I do/do not want to be given antibiotics if I have a life-threatening infection") or extremely general standardized language to express preferences regarding particular forms of medical treatment (e.g., "If I am terminally ill, do not use any extraordinary or heroic medical measures to keep me alive."). However, a few states have taken the legislative approach of providing a more open-ended format for giving health care instructions. This creates an opportunity for individuals to write directives that express their values, beliefs, and preferences in their own words by responding to questions such as, "What would be your most important goal if you were critically ill, to stay alive as long as possible or to be made as comfortable and pain-free as possible?"