What is an Advance Health Care Directive?

cartoon of doctor

You have the right to make decisions and give instructions about your own health care. An advance health care directive is a legal document through which a person, called the “Principal,” can specify those preferences ahead of time.

An advance health care directive typically includes one or more of the following things:

  1. stating your preferences for end-of-life care
  2. stating your preferences for mental health care
  3. express your wishes regarding the donation of organs
  4. naming additional people to have access to your protected health information
  5. naming an agent to make medical decisions on your behalf

With the exception of providing health care information access, the specific rules and terminology regarding advance health care directives are typically governed by state law. Therefore, if you are creating an advance health care directive online, you should make sure that the documents you are creating are specific to your state.

Did you know? All advance health care directives created through Just In Case Estates are specifically designed and formatted to comply with the requirements of your state.

#1 Stating your preferences for end-of-life care in a “living will”

If you become unconscious in a tragic ski accident, suffer severe and prolonged memory loss, or any other number of unfortunate events, you may temporarily or permanently lose the ability to make and communicate health care decisions. By stating your health care preferences in advance, you can provide important guidance to your loved ones, health care agent, and attending medical team regarding the type of care you wish to receive.

The legal document that allows you to do this is called a “living will.” For the most part, you can provide advance guidance on your preferences for any decision to which you could have otherwise consented were you not incapacitated. In practice, most people provide their answers to a few common end-of-life care topics:

To what extent do you want to prolong life if (a) you have an incurable condition that will result in your death in a relatively short, (b) you become unconscious and are unlikely to regain consciousness, and (c) the likely risks and burdens of further treatment outweigh the expected benefits?

Do you want to receive artificial nutrition and hydration if necessary to keep you alive?

Are there any exceptions or circumstances under which you would not want to receive relief from pain? Unless you specify otherwise, doctors have an ethical, moral, and legal obligation to treat pain as effectively as possible

#2 Stating your preferences for mental health care

Similar to expressing your preferences for end-of-life care, you can express preferences for mental health care in a mental health care directive. Those preferences may include designating certain medication you prefer over others, your favored pre-emergency intervention protocol, the facility or types of facilities through which you would like to receive care, and your preferred physicians or medical team, among other designations.

Since many of the possible instructions in a mental health care directive are specific to the Principal and the mental health condition that Principal has, mental health care directives are usually created only after the Principal is diagnosed with a particular condition or has a high risk of a condition.

Washington state offers an example acceptable form of a mental health care directive in Washington in 71.32.260 RCW Mental Health Care Directives. The statutory form specific to your state will likely present similar instructions but may follow a different format. If you’re preparing your own mental health care directive, check your state statutes or consult with a competent lawyer to make sure that you are complying with the requirements of your state.

#3 Expressing your wishes for organ donation

You can express your willingness to donate your organs in an advance health care directive if the circumstances surrounding your death permit doing so. You can choose to donate all suitable organs, tissues, and parts, or restrict to only certain ones. In addition, you can choose to specify permitted end-uses, such as for transplant, therapy, medical research, or education.

#4 Naming additional people to have access to your health information

Federal law limits the people and entities who have access to your health information. Under the Health Insurance Portability and Accountability Act (HIPAA), your personal health information cannot be shared by your health care provider to another party unless that party is a “covered entity” under HIPAA or you expressly authorize them to disclose it.

Executing a HIPAA Release as a standalone document or as part of a broader advance health care directive allows you to designate certain loved ones and other people who you are comfortable accessing and receiving information about your health care information. Without a HIPAA Release or separate permission from you, those loved ones may not be able to receive updates on your health or be admitted to visit you while in the hospital.

If you are engaged or in a committed relationship and would like your partner to be with you and updated in event of an emergency, granting your partner access to your health information through a HIPAA Release is vital. Without a HIPAA Release or designation as your health care agent, your partner may be left out of the loop.

#5 Naming an agent to make medical decisions on your behalf

Your right to make decisions about your health care includes the right to name someone else to make health care decisions for you. This is known as a medical power of attorney or a power of attorney for health care.

Since it’s impossible to anticipate and provide instructions for all the possible health care scenarios you may encounter, who you choose as agent for your medical power of attorney is the arguably the most important decision you will make in your advance health care directive.

Under your medical power of attorney for health care, you can choose to limit the authority of your agent by specifying the powers your agent has. If you choose not to limit your agent’s authority, your agent will be able to do all the following:

  • consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;
  • select or discharge health care providers and institutions;
  • approve or disapprove proposed diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and
  • direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care

Since these default powers are broad and sweeping, you should make careful considerations when choosing your agent for a health care power of attorney.

Typically, a power of attorney for health care becomes effective only if you are unable to make health care decisions yourself. In some states, however, you can choose to grant your power of attorney for health care authority to make decisions for you even while you still have capacity.

If you do not have a power of attorney for health care and are ruled Incapacitated, the power to make health care decisions will transfer to another person determined by state statute. This statutory choice may not be in accordance with your desires.

What to do after creating your advance health care directive

Sharing your advance health care directive. After you make your advance health care directive, give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any healthcare agents you named in a medical power of attorney. Discussing your choices with close family members is also a good idea to ensure that they are not later caught off-guard on your decisions.

Registering your living will. Some states offer residents the opportunity to register their advance health care directives in a state registry for a nominal fee. If you are unable to make your own health care decisions and your attending medical team does not have a copy of your living will on hand, your attending medical team will likely search the state registry.