Advance Directives/Health Care Decision Making

Health Care Decision Making: What You Need to Know
 
Prepared and issued as a public service of the 
Health Law Section of the 
Virginia State Bar 

The Virginia State Bar publishes pamphlets on law-related issues for Virginia’s citizens. If you would like to order printed copies of these pamphlets, please download the Publications Order Form*(pdf) and fax or mail with payment (when applicable) to the Virginia State Bar at (804) 775-0501.

Recently in Virginia, one family’s personal struggle to come to an agreement on the decision to remove artificial nutrition and fluids from a loved one in a persistent vegetative state focused attention on the need for health-decision planning. While it is often unpleasant to face the fact that you and your loved ones will not live forever and to discuss issues related to death, a little attention and planning now can go a long way towards preventing family misunderstandings and government involvement if you are ever unable to make health care decisions for yourself. You have a right to make decisions about health care and the use of life-prolonging procedures, based upon your own beliefs and values, even if others disagree with you. Right now, while you are still capable of clearly expressing your wishes, is the time to make your desires known. No one can say what tomorrow will bring. Don’t you owe it to your loved ones to make a painful time a little less difficult? The Virginia State Bar, the mandatory bar organization of lawyers, has prepared this pamphlet for you as a public service to fill a need for basic answers to some fundamental questions concerning health care and end of-life decision-making in the Commonwealth of Virginia. We hope it will help you talk to your family and physician about a difficult subject and express how you want to be treated if you are seriously ill and unable to speak for yourself. 

1. What legal tools are available to help me make my health-related and end-of-life choices known? 
   The primary legal tools used in Virginia are advance directives, which may include: 
   

   • Health care power-of-attorney; and/or 
     

   • Living will (also called a health care medical declaration).

    

2. What are advance medical directives? 
   An advance directive is a written or oral statement made by you, while you are competent, that expresses your wishes should you become incapable of making an informed health care decision due to a mental or physical disorder. The two types of advance directives most often used are the health care power-of-attorney and a living will. You may choose to use either or both of these tools, or you may choose not to make an advance medical directive at all. 
   

3. What is a health care power-of-attorney? 
   A health care power-of-attorney (sometimes called a medical power-of attorney) is a document in which you (the “principal”) give legal authority to another person (the “agent”) to make some or all of your health care decisions for you in the event you become incapable of making those decisions for yourself. Thus, while you are competent, choices about health care remain up to you; your designated agent uses a health care power-of-attorney only when you become incapable of making your own decisions about health care and medical treatment. You can be very specific in your power-of-attorney document. In your health care power of-attorney, you can limit the agent’s power to make decisions. You can include guidelines in your power-of-attorney, outlining what types of decisions your agent is authorized to make, such as consenting to, refusing or withdrawing treatment, choice of health care provider, or decisions regarding organ donation. You can change or end the power of your agent at any time, so long as you are still legally capable of making your own decisions. In other words, you can design a health care power of-attorney to address your beliefs, and concerns, and preferences—there is no prescribed level of authority that you must grant your agent. 
   

4. How do I create a health care power-of- attorney? 
   A health care power-of-attorney is generally created by a written document, setting out the powers of your agent. The Virginia Health Care Decisions Act contains a suggested (but not required) form for a written health care power-of-attorney. Copies of this form may be obtained from most hospitals or local Area Agencies on Aging. Ask your health care provider or your lawyer if you are not sure how to get a copy of the form. You must sign the document in the presence of two witnesses who are not your spouse or blood relatives. You do not need to have the document notarized. If your doctor has diagnosed you with a terminal condition, and you are still competent, you may create a health care power-of-attorney orally. This must be done in the presence of your attending doctor and two witnesses. 
   

5. How do I choose someone to be my agent? 
   Deciding who will serve as your agent is very important. It should be an adult whom you trust completely and who knows your values, religious beliefs, and any other important concerns you have. Many people choose a spouse or an adult child. Be confident that the person you select will be able to think clearly on your behalf despite his or her personal feelings about the situation. It is a good idea to select a secondary agent to make decisions in the event your primary agent is unable or unwilling to do so. It is also a good idea to discuss your desire to designate a person as your agent with that person to ascertain if he or she is willing to accept this responsibility and to discuss the extent of the authority you intend to confer. The suggested form of a health care power-of-attorney in Virginia provides that your agent will not make a decision that he or she knows, or should know, is against your beliefs, values, or wishes. Remember, you can change or terminate your agent at any time, so long as you are still legally competent. 
   

6. What are the benefits of having a health care power-of-attorney? 
   Times of medical need are inherently stressful. Preparing a health care power-of-attorney in advance reduces the chance of conflict among your family, friends and health care providers. If your wishes are clear, there is less chance of the courts or the government becoming involved in your private matters. In short, a health care power-of-attorney enables you to specify who will make decisions about your care and treatment pursuant to whatever guidelines you choose to specify. 
   

7. What is a living will? 
   A living will (also known as a health care declaration) is generally a written document that authorizes the providing, withholding or withdrawal of life-prolonging procedures in the event you have a terminal condition. A terminal condition may mean either that your death is imminent, or that you are in a persistent vegetative state. In your living will, you can direct that specific procedures or treatments, such as artificially administered nutrition, be either provided or withheld. Some people want the determination that they have a terminal condition to be made by their attending doctor and one additional physician. Some people also wish for the condition to have lasted for a specified time period before treatment is withheld or withdrawn. You should be sure that your living will accurately reflects your wishes. Again, a living will can be written to reflect your preferences and directions; there is nothing to prescribe what you must or must not include in a living will. 
   

8. What are the differences between a living will and a health care power of-attorney? 
   A living will is different from a health care power-of-attorney in that a living will does not appoint an agent. A living will also applies only to cases of terminal illness, whereas a power-of-attorney may apply any time you are unable to make an informed decision about your medical care. 
   

9. How do I create a living will? 
   A living will is usually prepared in writing. The Virginia Health Care Decisions Act sets forth a suggested form for making a living will, but the use of this form is not mandatory. Talk to your health care provider or your lawyer if you have questions about preparing your living will. The law requires that you sign your living will in the presence of two witnesses who are not your spouse or blood relatives. If your doctor has diagnosed you with a terminal condition, yet you are still legally competent, you may make an oral advance directive, authorizing the providing, withholding or withdrawing of life-prolonging procedures. This oral statement must be made in the presence of your attending doctor and two witnesses. 
   

10. What are the benefits of having a living will? 
    Like completing a health care power-of-attorney, preparing a living will can help ease the confusion and conflict that may arise among your loved ones if you become terminally ill. It can also help assure that the power to make these important decisions is yours, and not the Commonwealth’s, as a living will serves as the final expression of your legal right to refuse or to authorize medical or surgical treatment. 
    

11. Once I have created my advance directives, what should I do with them? 
    Because they cover different circumstances (see #8 above), many people choose to execute both a health care power-of-attorney and a living will. Either one of these, or both together, are termed “advance directives.” It is your responsibility to make sure that your health care providers know that you have made an advance directive. If you are unable to do so, however, someone else may tell your doctor that you have prepared an advance directive. Be sure your family knows as well. You should sign multiple originals of your advance directives and give them to all the people who may need them. For example, you should consider giving copies to your doctor or other health care professionals, family members, hospitals or hospices, and your clergy. You may also give a signed original to your lawyer to hold in his or her files. Also, be sure to keep a signed original at home with your other important papers. Talk to your doctor to be sure he or she understands your choices and will respect your decision. Your advance directives should be made a part of your medical record. 
    

12. I made an advance directive when I lived in another state. Do I need to do it again now that I live in Virginia? 
    If you made an advance directive in another state, it will be valid in Virginia provided it was executed according to the laws of the Commonwealth of Virginia or the state where it was made. 
    

13. What if I change my mind? 
    You may cancel your advance directives (health care power-of-attorney or living will) at any time, as long as you are still legally competent. You may do this by a signed, dated writing, by physically destroying the advance directive yourself, or by having someone else destroy it in your presence, or by expressing orally your intent to cancel the advance directive. It is also advisable to destroy any copies to avoid future confusion or dispute. Remember, it is important that your attending doctor be told immediately if you change your mind. Likewise, you should inform family members and other persons who are aware that you previously made an advance directive. 
    

14. What if I have made an advance directive, but I am in pain? 
    It is important to understand that just because you prepare an advance directive does not mean that you will be unable to receive pain medication. A living will pertains to treatments that artificially extend your life, not to procedures or medicines needed to provide you with comfort or alleviate pain. A health care power-of-attorney gives your agent the power to make decisions based on your stated preferences or your best interests. Often, this includes the provision of pain-relieving medications. 
    

15. Can an advance directive be used to encourage “mercy killing” or euthanasia? 
    Sometimes people are afraid that if they become terminally ill or unable to make their own decisions, they will be a burden on their loved ones. Many feel that they would rather hasten their own death to avoid this possibility of prolonged stress on others, or to put an end to a painful illness. The law on advance directives, however, may not be interpreted to authorize or approve of mercy killing or euthanasia, or to allow any act or omission to end life, other than to permit the natural process of dying. 
    

16. Will having an advance directive affect my insurance benefits? 
    Under the law of the Commonwealth of Virginia, your decision to make an advance directive may not affect whether you are able to obtain a life insurance policy or be used as a reason for your insurance company to modify the terms of your existing policy. If you or your health care power of-attorney agent choose to have your life-prolonging procedures withheld or withdrawn, this does not constitute a suicide, and it will not affect your insurance benefits. In addition, no one may require you to make an advance directive or consent to a Durable Do Not Resuscitate Order as a condition of being insured for, or receiving, health care services. 
    

17. How will health care decisions be made if I choose not to prepare an advance directive now and I become unable to decide for myself? 
    If you choose not to make an advance directive, this does not mean that you are automatically consenting to or refusing life-prolonging procedures. If you are incapable of making an informed decision about your health care and you have not made an advance directive, or if your advance directive does not address the current situation and you have not appointed an agent, the law specifies who your doctor should turn to for medical decisions. The following persons, in the specified order, will be asked to make your treatment decisions: a guardian (if you have one), your spouse, your adult child, your parent, your adult brother or sister, or any other relative. They must take into account any preferences you have expressed, your religious beliefs and values, and your best interests. If another person does not agree with the medical decision, he or she may ask the court where you reside to review the situation. If you wish to avoid disputes or confusion about your care and treatment, it is better to make an advance directive. 
    

18. What is a Durable Do Not Resuscitate Order? 
    A Durable Do Not Resuscitate Order is not the same thing as an advance directive. It is a written order made by a doctor to withhold cardiopulmonary resuscitation. This means that medical personnel will not act if there is respiratory or cardiac arrest. A doctor may issue the order only with the consent of the patient or the patient’s legal representative. The order remains valid and in effect until it is revoked by the patient or the representative. 
    

19. What should I do if I want to donate my organs? 
    If you want to donate your organs upon your death, there are several ways you can make this desire known. You may specify on your driver’s license that you wish to be an organ donor. You also can indicate your desire to donate your organs in any signed written document, including your advance directive or your will. If you are unable to sign the document yourself, you can have another person sign it for you in your presence and the presence of two witnesses, who must also sign. If you wish, you may appoint an agent in your will or your advance directive to make a gift of your organs upon your death. In all cases, be sure to let your family know your decision regarding organ donation. Doing so can save valuable time in getting your organs to those in need if you have decided to make an anatomical gift. 
    

20. Who can I contact for further information? 
    A lawyer who is familiar with estate planning, health care law, or elder law can help you make your advance directives. Virginia has statutory forms that may be used for the living will and health care power-of attorney. Many organizations, such as Choice in Dying, the Virginia Department for the Aging or your local hospital, provide sample forms free of charge. You may telephone Choice in Dying toll free at 800-989 WILL (9455) and the Virginia Department for the Aging at 800-552-3402. Also, your local Area Agency on Aging can provide you with additional information about health care planning decisions. 

Back to Advance Directives/Health Care Decision Making

Back to Disability Planning