Health Care Directives

By Michelle Lonsinger

Overview of Health Care Directives

A health care directive is a legal document that allows an individual (the “principal”) to appoint someone else (the “agent”) to make decisions regarding his medical care if his primary physician determines that he is unable to do so himself. It will remain in effect if the principal becomes incapacitated, and can be revoked by the principal at any time.

With a health care directive, the agent can be granted the power to make decisions regarding the principal’s health care, including authorization of care, withdrawal or refusal of care, and admission to or discharge from care facilities; a health care directive can also be used to communicate the principal’s wishes regarding the types of care he will receive in particular circumstances. Most health care directives will also include a statement granting the agent access to the principal’s health care records in accordance with the Health Insurance Portability and Accountability Act (HIPAA). A health care directive does not authorize any individual to make decisions for the principal that are not related to medical care.

How do I make one?

Most states provide two basics documents with which your care recipient can provide instructions or directives for his health care: a Durable Power of Attorney for Health Care, which allows the principal to appoint a health care agent, and a “living will,” which allows the principal to describe his health care wishes. Many states combine these two into a single Advance Directive for Health Care. A physician or legal advisor can probably explain the specific documents that are required for your state, and any limitations on who can be named as an agent.

There are many self-help resources available online and in print to help you create a health care directive, and many legal websites offer basic state-specific templates for purchase. If you’re at all concerned about your ability to create one yourself, you should use the expertise of a competent legal advisor. An example of a basic Advance Directive for Health Care, created and formatted in Microsoft Word, is available here.

Does this count as a Do Not Resuscitate order?

A health care directive does not include a Do Not Resuscitate (DNR) order, but may authorize the agent to create or sign one. If your care recipient wants to have a DNR order, you should talk with his primary physician. Most states require the physician’s signature on the DNR, and he will often be the one to obtain and prepare the necessary paperwork. If he does not have the required form or information, you can obtain it from your state Health Department.

For additional information regarding DNR orders, click here.

Does it need to be notarized or witnessed?

In most states, a health care directive does not need to be signed in the presence of a notary public. However, most states do require that the directive be signed by two parties who are unrelated to the principal and uninvolved in his or her health care. If the principal is a patient in a skilled nursing facility, some states require an additional statement and signature from the facility’s patient advocate or ombudsman.

What should I do with it after it’s signed?

You should keep the signed original copy of your care recipient’s health care directive in a safe location, and provide copies to his agent (if someone other than yourself) and the doctors or facilities that are most likely to treat your care recipient. You might also want to provide copies to your care recipient’s consulting physicians, immediate family members, trusted friends, and the patient representative for his insurance plan. Keep a detailed list of everyone who holds a copy of the health care directive; if the document is later revoked, each person or institution that holds a copy should be notified. Although your care recipient may be reluctant to share the intimate details of his health care and related wishes with others, a health care directive will only be useful if others know it exists.

Can my care recipient revoke it?

There are two ways to revoke a health care directive:

• The principal can prepare, sign, and distribute a Notice of Revocation (click here for example)
• The principal can ensure that all existing copies of the document are destroyed.

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