An advance health care directive is a type of legal instrument that provides written instructions on a person’s preferences regarding future medical treatments in the event that they become physically or mentally incapacitated. Such directives may also be referred to as one of the following types of documents:

  • A living will;
  • A medical or health care directive;
  • A healthcare proxy; or
  • A durable power of attorney.

In general, advance health care directives are most commonly drafted as either:

  • An advance precautionary measure;
  • If a person anticipates that a serious illness or injury might worsen; or
  • When they reach a certain older age bracket.

In other words, this document can be thought of as a set of directions that are given to loved ones in advance for when or if a family member’s decision-making capabilities become impacted. This makes it easier for both the individual as well as their family members and close friends to make decisions concerning their health in a way that would conform to that person’s wishes were they still able to make those decisions for themselves.

As an example, suppose you had a disease that required you to undergo a series of complicated medical procedures. Along with having to provide written consent to have the surgery, you might also want to consider drafting a list of instructions for a family member in case something goes wrong during the procedure. Examples of these are if the surgeon makes a grave error or if the anesthesia administered causes you to lapse into a temporary coma.

Having directions already in place were something unfortunate to happen to you can help ensure that your preferences regarding medical treatment will be well-known, that your loved ones will have one less distressing decision to make on your behalf, and could potentially give you peace of mind before going into surgery.

Lastly, it is important to note that much like any other legal document, advance health care directives must be carefully written in a clear and unambiguous manner. This not only increases the chances of your directives being carried out in exactly the way you so desire, but also serves as an extra preventive against future legal disputes concerning medical decisions.

Therefore, if you need to draft an advance health care directive, then it may be in your best interest to contact a personal injury lawyer in your area to receive proper legal guidance.

How Does an Advance Directive Work?

Advance health care directives are drafted in conformity with guidelines from a combination of different legal fields, including contract law principles, trust and estate statutes, and rules governing principal-agent arrangements.

Also, many of the specific drafting requirements for advance health care directives stem from state laws concerning these legal fields. Thus, a person should make sure to hire an advance directive lawyer who practices in their jurisdiction.

Although the way an advance directive works will vary based on the state and the terms of the individual document, an advance health care directive generally operates in the following manner:

  • First, the person who is creating this legal instrument must have both the mental competency to do so, as well as must be of the legal age of majority in their state. Most states consider the legal age of majority to be 18 years of age. These two requirements are the same as what is needed to draft a standard contract.
  • Next, the creator must appoint an individual to carry out their instructions. The name of this individual must be included in the document and the document must be in writing. In most cases, the named individual is usually a spouse, a close relative, or a family friend. Depending on where the creator lives, the individual who is appointed to execute their directives may be called:
    • A health care agent;
    • A patient advocate;
    • A health care surrogate; or
    • A proxy (note that a healthcare proxy is the document that provides advance directives and that a proxy refers to the agent who ensures those directives are obeyed).
  • Prior to meeting with a lawyer, the creator should take some time to think about what medical preferences they want to incorporate in the document. If the creator is not sure, then they can discuss some of the common directives that people usually include in such documents. For example, many people will add instructions for what they want to happen if a surgery or illness results in them being put on life support.
  • The lawyer will then draft a final version of the advance health care directives, which the creator should review for approval. The document will remain with the attorney and be stored for safekeeping until when or if the need for it arises.

Can My Instructions in an Advanced Directive Be Disregarded?

As discussed above, an advance directive should contain clear and carefully worded instructions. A creator should include both general preferences that a proxy should comply with, as well as detailed directions to abide by for any special concerns. In general, a proxy is required to follow a creator’s directives exactly as how they are written. If a proxy fails to follow the instructions, then they could potentially be held liable for damages.

On the other hand, there are some instances where a physician or surgeon may order that a creator’s advance directive be set aside out of medical necessity, such as in cases of emergencies or if a health-related situation arises that a creator either could not or did not foresee.

In addition, some advance directives may be made obsolete by newer innovations in medical technology, equipment, and/or treatments. This can happen when a person drafted an advance health care directive several decades prior to when it needed to be put into effect.

Some other common examples of when the circumstances may require a physician or surgeon to set aside an advance health care directive may include:

  • When a preference requested in the directive conflicts with the conscience of the treating physician or surgeon;
  • If the instructions provided in the directive contradict the policies of the medical facility or hospital where the person is being treated;
  • When a person’s preferences would force a physician or health care provider to violate health care standards or laws; and
  • If the instructions in the advance directive would lead to insufficient or ineffective health care services.

However, even if such situations do arise, an attending physician or health care facility cannot simply ignore an advance directive. The doctor must still obtain consent from either the patient or their health care agent. If a doctor or other individual employed by a medical institution proceeds without either party’s consent, then they can potentially be held liable for damages, such as those for wrongful death, malpractice, or negligence.

What If I Disagree with My Doctor’s Opinion?

A person should think carefully about their doctor’s advice before completely disagreeing with their opinion. Oftentimes, the stress caused by a serious illness or injury can take an emotional toll on a person and may cause them to ignore a situation that they may not want to face.

However, like all people, doctors can sometimes make mistakes too. So, if a person truly feels as if they cannot trust their doctor or are simply unsatisfied with their doctor’s opinion, then they should consider switching doctors or ask to be transferred to a new medical facility.

As for the proxy, a person should advise the individual they appointed to carry out their instructions as closely as they possibly can and to defer to their doctor’s opinion if a situation becomes worse than what was originally anticipated or if an unforeseen medical issue arises while the person is incapacitated.

Hence, why it is so important that a person draft clear and well thought-out instructions for the individual who may need to make decisions on their behalf.

Do I Need a Lawyer for Issues with Advance Health Care Directives?

Having to draft an advance health care directive can be an emotionally taxing experience. As previously discussed, this document essentially serves as future directions for loved ones in the event that you become mentally or physically incapacitated, which is not a pleasant thought.

Thus, to reduce some of the stress of your current situation, you should consider hiring a local elder law lawyer if you need to draft a document containing advance health care directives.

An experienced personal injury lawyer will be able to help you draft an advance health care directive that clearly expresses your preferences as well as allows for flexibility should your circumstances change in the future. Your lawyer can also provide legal representation in court if there is a dispute over the terms of your directive or with the person whom you chose to be your proxy.