Advance directive and healthcare proxy

One document names a person. The other states your wishes. Most people need both, and many states combine them into a single form called an advance directive.

If you only do one thing, name the person. A trusted person who knows you can handle a situation your document never anticipated. A detailed document with nobody authorized to speak is far weaker.

In one study cited by the National Institute on Aging, people guessed nearly one in three end-of-life decisions for a family member incorrectly. That is the argument for the conversation, not just the paperwork.

Healthcare proxy

Also called a healthcare power of attorney, a medical power of attorney, or a durable power of attorney for health care, depending on your state. The NIA defines it as the document that names your health care proxy, the person who can make health care decisions for you if you cannot communicate them yourself.

That person can:

• Consent to or refuse treatment
• Choose among treatment options
• Select or change doctors and facilities
• Access your medical records
• Make end-of-life decisions, within limits you set

It generally takes effect only when you cannot decide for yourself. While you can still communicate, you remain in charge, even if your agent disagrees.

Living will

A living will tells doctors how you want to be treated if you cannot make your own decisions about emergency treatment. It commonly addresses:

• Cardiopulmonary resuscitation
• Mechanical ventilation
• Artificial nutrition and hydration
• Dialysis
• Antibiotics in a terminal condition
• Comfort care and pain management
• Organ and tissue donation

Its limitation is that it cannot anticipate everything, which is why the named person matters so much.

Legally recognized, but not absolutely binding

Worth knowing before you assume the document settles everything: an advance directive is legally recognized but not legally binding.

Your provider and your proxy will try to respect it, but there are circumstances in which they may not follow it exactly, if it conflicts with the provider's conscience, the institution's policy, or accepted health care standards. A provider who declines must tell your proxy and consider transferring your care.

This is another argument for naming someone who will advocate, rather than relying on the paper alone.

How these differ from a DNR and a POLST

Three different things, constantly confused.

An advance directive is a legal document you complete yourself. It guides your agent and your clinicians.

A DNR order is an order in your medical chart telling staff not to attempt CPR or other life-support measures if your heart or breathing stops. Even if your living will says you do not want CPR, it is still worth having a DNR in your file if you go to a hospital, the living will states a wish, the DNR is the order.

A POLST or MOLST is a medical order signed by a health care professional, covering a broader set of treatments. It is meant for people who are seriously ill or frail, and it travels between settings.

The distinction that matters in an emergency: advance directives are not orders that EMS providers can follow. A POLST is. Someone with a serious illness generally needs both, and a POLST supplements an advance directive rather than replacing it.

Not every state offers POLST. Ask your state department of health.

Why they are state-specific

Requirements differ by state, witnessing rules, notarization, who may witness, who may not serve as your agent, and the scope of authority.

Do not assume a directive signed in one state is valid everywhere. Whether another state honors it depends on that state's own reciprocity rules. If you split time between two states, the NIA's advice is to prepare a directive on each state's form and keep a copy in each place.

If you use a form from a website, check that it is legally recognized in your state. Many states publish their own form for free.

On Five Wishes: its publisher, Aging with Dignity, states that it meets the legal requirements in all fifty states. That is the publisher's own claim. Some states still require particular witnessing or notarization, so confirm against your state's rules before relying on it.

What the law requires of hospitals

Under the federal Patient Self-Determination Act, hospitals, nursing homes, hospices, home health agencies, and Medicare Advantage plans must tell adult patients about their right to make health care decisions, ask whether they already have an advance directive, and record the answer. They may not discriminate based on whether you have one.

Note what that does not mean. The law requires them to inform you. It does not require you to have a directive, and it does not guarantee a directive will be followed in every circumstance.

Advance care planning is covered by Medicare as part of the annual wellness visit.

The three ways these fail

Never signed. People get the forms and do not complete them. An unsigned form is not a document.

Never shared. The signed original sits in a safe deposit box nobody can open on a Saturday night. Give copies to your agent, your backup, your physician, and any hospital where you receive care. Keep one reachable at home.

Never mentioned. The named person does not know they were named, or has never discussed your actual wishes. Being handed that responsibility in a crisis is a burden. The conversation is the point; the document records it.

Who to give copies to

• Your healthcare agent
• Your backup agent
• Your primary care physician, for your chart
• Any specialist treating a serious condition
• The hospital or system where you usually receive care
• A family member likely to be present in an emergency
• Yourself, somewhere reachable without a key

Some states run an advance directive registry. Many people also carry a wallet card noting the document exists and who to call.

Choosing your agent

The right person is:

• Able to stay calm and decide under pressure
• Willing to advocate against a confident clinician when necessary
• Able to set aside their own preferences and follow yours
• Reachable, and realistically able to get there
• Willing, ask them, and have the real conversation

Think carefully before naming someone who cannot bear to let you go. Love is not the qualification; the ability to honor your wishes is.

Name a backup. First choices are unreachable more often than people expect.

Changing your mind

You can revoke or replace these at any time while you have capacity. Complete a new form, destroy the old copies, and tell everyone who has one.

The NIA suggests reviewing your plans at least once a year, and after any major life event, a new diagnosis, a divorce, the death of your agent, or a move to another state.

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The 72-Hour File records who you named, where the signed copies are, and who already has one. See what is inside