Advance directives are instructions executed by decisionally capable adults that pertain to the future medical treatment preferences or values of the party executing the document. These directives take effect only if the patient is decisionally incapacitated at the time that specific decisions need to be made. FUNDAMENTALS OF HEALTH LAW Glossary.
There are various kinds of advance directives; some of the more commonly known examples include a living will and durable power of attorney (DPOA) for healthcare decision-making. Advance directives are governed by state law, which often differ in the applicable requirements. A patient’s decision-making validity is determined by two concepts. A patient’s decision-making capacity is decided by the individual’s physician, and that decision is related to functional aspects. Competency is determined by the judicial system and, therefore, has a legal aspect.
A living will states the wishes of the person creating the document to instruct family and healthcare providers what to do if the person is unable to speak for herself. Generally, a living will is effective only if the person is terminally ill, although this may vary depending on the applicable state law and the terms of the document.
On the other hand, a DPOA for healthcare allows a person to appoint someone to make healthcare decisions for the designating individual when that person is unable to make decisions personally. Usually, a DPOA for healthcare is effective only after a person has been determined to be incapacitated; it is important to note that the criteria and method of that determination is controlled by state law. The terminology varies from state to state; in general, however, the person creating the DPOA is usually called the “principal.” The person appointed to act on behalf of the principal is the “attorney-in-fact.” The principal does not have to be terminally ill for a DPOA for healthcare to be in effect. The person can be in a coma or a persistent vegetative state (PVS).
Excerpt from American Health Lawyers Association’s A Guide to Legal Issues in Life-Limiting Conditions, available at http://dev.healthlawyers.org/hlresources/PI/InfoSeries/Documents/Life%20Limiting%20Conditions.pdf.