An advance health care directive is a written document stating instructions on how you are to be treated medically in the event that you become incapacitated. They are usually made in anticipation of a serious illness or injury, or, more commonly, to prepare for old age. A good way to think of it is that the document contains "directions" that are given "in advance", while the person’s decision-making abilities are still intact.

Advance health care directives are commonly known as simply "advance directives." The term is also used interchangeably with the terms "living will" and "durable power of attorney for health care."

How Does a Advance Directive Work?

In order to execute the instructions contained in the advance health care directive, an agent is usually named in the writing. This is usually a close family member or a trusted friend who will make decisions and take action on behalf of the ill or incapacitated person. Specific instructions regarding the person’s care can be listed in the directive, though it is usually best to appoint an agent who is familiar with the person’s desires and wishes.

Advance health care directives can be very useful tools for avoiding any confusion as to what type of medical care a person wishes to receive. However, to be effective, they must be obeyed and implemented according to the person’s wishes.

Can My Instructions in an Advanced Directive Be Disregarded?

Your advance directive should contain both general principles to be followed, as well as detailed instructions for any specific concerns you might have. Your agent is required to follow your instruction as written. If the agent does not follow the written instructions, he or she could be held liable for damages in a private lawsuit.

However, it sometimes happens that a physician or doctor must set aside your advance directive out of necessity, in cases of emergency, or where you have not adequately foreseen certain health-related circumstances. Additionally, advances in medical technology and techniques can sometimes make your instructions obsolete, as your advance directive may have been drafted several decades before it needs to be put into effect.

Circumstances wherein a doctor or physician may need to set aside your advance directive can include:

  • The provision in your directive presented decisions which are against the conscience of the doctor or physician.
  • Your directive offers instructions based on policies that are contrary to the policies of the health care institution or hospital.
  • The advance directive includes instructions that would result in inadequate or ineffective health care.
  • Your instructions would cause the physician to violate health care standards.

Even if these conflicts occur, your health care provider or doctor cannot simply ignore your wishes. He or she must still obtain the consent of you or your agent to act. If your doctor proceeds without your knowledge or your agent’s consent, he or she may be liable for damages. Damages can result for losses due to medical malpractice, negligence, or wrongful death. In the case of severe incapacitation or death, your estate and surviving relatives would receive the benefits.

What If I Disagree with My Doctor’s Opinion?

First, you should carefully consider your doctor’s advice. Instruct your agent to exercise the same care when listening to a physician’s advice. However, if you are unsatisfied with your doctor’s advice, you can always request a new doctor or inquire about being transferred to a different facility.

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

Before you draft an advance directive, you should consult with an attorney for advice. A personal injury lawyer can help you draft a directive that expresses your intentions while at the same time making room for future circumstances. If there are any disputes over the provisions in your directive, or any disputes involving your agent, your lawyer will be able to represent you in a court of law.