Advance medical directives are a form of contract that anyone can make regarding their future medical treatment, should they become incapacitated. In their most basic form, they are simply written statements of your wishes regarding your health-care that go into effect whenever you are unable to make a decision.

What Are the Different Varieties of Advance Medical Directives?

There are there major varieties of advance directives:

1) Living Wills: The most well known type of directive is called a living will, and can range from extremely general wishes concerning health-care to extremely specific orders covering dozens of possible scenarios. Perhaps the most common order is to deny life-sustaining measures when someone is terminally incapacitated and in pain, such as:

"If I suffer an incurable, irreversible illness or condition and my doctor determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued."

In the wake of high-profile news stories regarding incapacitated terminally ill people, many living-wills created these days include details as to exactly which type of machines should or shouldn't be used, whether feeding tubes should be withheld, and exactly how far doctors should go to preserve life.

2) Durable Power of Attorney: In the alternative to making a living will, you can simply appoint someone else to handle all future questions regarding your care. Normally, granting someone regular (also known as "non-durable") power of attorney allows them to handle any sort of legal, medical, or business decisions on your behalf.  But unlike a normal power of attorney, durable power of attorney is not revoked in case of the incapacitation or death of the principal (person giving the power of attorney), which is why it is mainly used in advance medical directives. 

Besides giving the person the legal ability to choose what kind of care and life support you receive, it will also allow the person to make bank transactions, sign social security checks, apply for disability, and any other everyday needs you might have while incapacitated.

3) Health Care Proxy: This is a legal document which functions as a specific version of power of attorney. That is, it appoints someone to make health care decisions directly on your behalf if you are incapacitated, but gives them none of the other (financial and legal) rights that a power of attorney would.

Which Type of Advance Directive Should I Use?

The best idea is to use all of them. Having a living will is the ideal way to explain the circumstances in which you want medical treatment, but it is impossible to cover every possible situation that can occur. This is why also granting durable power of attorney or health care proxy to someone else can make sure you are completely protected. Anything you do not specifically cover in your living will will be decided by the agent you appoint.  

Can My Health Care Proxy Override My Living Will?

No.  If the living will is valid, then it is the final authority on all matters regarding your health care. Even someone granted full authority to make medical decisions cannot override what you have provided for in your living will.

How Do I Make a Living Will?

While you can make a living will orally, it is generally not recommended because it is not a very effective method of ensuring your wishes are carried out. A attorney specializing in wills can make sure you get a proper legal document that will be recognized should the need every arise. For a living will, the only requirements are that you:

  • Be 18 years of age
  • Be of sound mind
  • Have 2 - 3 (depending on the state) witnesses to the signing of the document
  • And have your will notarized by a notary public.

It is important to note, however, that the witnesses should not be related to you in anyway, have any financial interest in your will, be related to your doctor or hospital, or be financially responsible for your health care. While you can revoke a living will orally at anytime, it is wise to make sure everyone concerned knows your wishes in writing to ensure that your actual wishes are carried out (if you make a new will, it is best to nullify the previous will in writing, so there is no confusion over which one applies).  

While you do not have to send the living will to anyone, the best recourse is to give a copy to your physician and family members, and to make sure a copy is in your medical file, so that all doctors will have access to it.

Do I Need an Attorney?

There are few legal choices more momentous then that of whether to allow doctors to end your life. To make sure that your wishes are followed, and not the wishes of those whose judgment may be clouded with emotion, it is an excellent idea to have a living will, or to have a power of attorney in someone you trust to make the right decisions. An estate lawyer specializing in wills can make sure that your wishes are backed by legal authority and on record. Otherwise all sorts of people may claim to know how you would have wanted to be treated, dragging out long and bitter legal battles.