Over time, several types of documents have emerged to help you express your wishes for treatment any time you are unable to speak for yourself, particularly during serious illness or end of life.
Certain words, like “Living Will” and “Advance Directive”, are used interchangeably when they should not be.
Others, like “Healthcare Power of Attorney”, have about five different names.
None require the advice or services of an attorney to create. At this point we are left with an overlapping, somewhat confusing set of documents. Some are legal documents, some are medical orders some are valid outside of the hospital and some are not. Some everyone should have and others are applicable only towards the end of life. All, however, are only useful if they are accessible when you need them and if the person you have authorized to speak for you is empowered to do so. Let us help you sort it out.
What are Advance Directives?
Advance Directives are a set of documents that both appoint a person to speak for you and contain your preferences for medical treatment. Each state has its own Advance Directive with the language and content that state deems important and we have gathered them for you so you can find your state’s Advance Directive easily.
All Advance Directives must include at least two sections:
- A statement of your preferences for medical treatment (or not), also known as a Living Will and
- The appointment of a person to speak for you if you are unable to, also known as a Healthcare Agent.
In other words, a Living Will is one component of an Advance Directive.
Advance Directives may also contain instructions around organ donation, appointment of a guardian, and other matters, depending on which state you live in.
Learn more about Advance Directives and find your state’s form.
Are Living Wills the same as Advance Directives?
A Living Will is a statement of the type of care you prefer if you are not able to speak for yourself. It is important to understand that living wills only apply to your healthcare wishes; you will need something called “a last will and testament” to express your wishes about what to do with material goods.
While each state has state-specific Advance Directive form, there aren’t separate state-specific Living Will documents because the information contained in a Living Will is already part of the Advance Directive. Nonetheless, just to make things even more confusing, a lot of the websites that offer “‘free”’ legal forms online incorrectly refer to Advance Directives as Living Wills. A Living Will, without having appointed someone to speak for you, is of limited value. Frequently, the decisions that need to be made are not specifically addressed in the Living Will. Your Healthcare Agent is in the best position to know what you would want and is authorized to speak for you.
What are Healthcare Powers of Attorney?
A Healthcare Power of Attorney can be both a person and a legal document. The legal document appoints and authorizes someone to speak for you when you cannot and must be witnessed or notarized, depending on where you live. The person, the Healthcare Power of Attorney, may also be known as a Healthcare Agent, Healthcare Proxy, Healthcare Surrogate, Healthcare Attorney in Fact, or Healthcare Representative. Each state has its own Healthcare Power of Attorney form, which is embedded in that state’s Advance Directive. Several commercial sites also offer Healthcare Power of Attorney forms; you should be aware that many sites offering free legal documents may collect and share a lot of personal data and/or require a ‘subscription’ for ongoing access. These sites may be useful to you, but read the fine print.
What are DNRs?
Do Not Resuscitate orders (DNRs) are medical orders written by a doctor. They instruct healthcare providers not to do cardiopulmonary resuscitation (CPR) if a patient’s breathing stops or if the patient’s heart stops beating. If presented, they will be honored by EMTs.
They may be part of a POLST but can also be their own form.
What are POLSTs?
POLST is an abbreviation for Physician’s Orders for Life-Sustaining Treatment. POLSTs are forms that consist of a set of medical orders that applies to a limited population of patients, such as seriously-ill or frail persons, and address a limited number of critical medical decisions.
A POLST has the option of specifying Do Not Resuscitate (DNR) but also makes provision for other types of treatment such as feeding tubes and mechanical ventilation. They will be filled out in consultation with your doctor. POLSTs are state-specific and are specifically for the seriously ill or frail. If presented, they will be honored by EMTs.
POLSTs do not appoint someone to speak on your behalf like Advance Directives do.
Learn more about POLSTs and how they relate to Advance Directives.
Your Healthcare Agent is the person that can speak for you when you cannot; they are your legal representative and the doctors must listen to them. However, it is also useful to fill out a HIPAA Right of Access to Healthcare Information for anyone you want involved in your care.
What is a HIPAA Right of Access to Healthcare Information?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. HIPAA can be a wonderful thing when its rules protect your privacy, but sometimes organizations cite HIPAA and refuse to give information to people you want to know about your condition, or to your Healthcare Agent. There is another form, prepared by the American Bar Association, that is helpful.
If you have several people that you would like to be empowered to speak with your doctors. They will each need an authorization.
What do I need to decide?
There are three decisions to make and actions to take that will help you get what you want (and not get what you don’t want) when you are unable to speak for yourself. The decisions, and their respective tasks, fall into:
- Deciding on and appointing someone to speak for you when you can’t
- Getting clarity about what you want and don’t want. This includes giving specific instructions around resuscitation, ventilation, and feeding if appropriate for your stage of life.
- Telling your agent and others what you want, writing it down, and having the information available when needed
If you only do one thing, choose and appoint a healthcare power of attorney (agent) and tell them what you want. They will have the legal authority to speak for you.
The following table compares the documents we’ve been discussing.
| Characteristic | Advance Directive a | Healthcare Power of Attorney b | Living Will | Do Not Resuscitate (DNR) | POLST |
|---|---|---|---|---|---|
| Legal Document 1 | X | X | X | ||
| Medical Order 2 | X | X | |||
| Valid in Hospital 3 | X | X | X | X | X |
| Valid Outside of Hospital 4 | X | X | |||
| Binding to MD’s 5 | X | X | X | ||
| Binding to EMT’s 6 | X | X | |||
| Lifelong 7 | X | ||||
| Serious Illness 8 | X | X | X | ||
| Last 12 months/end of life 9 | X | X | X | X | X |
| State Specific 10 | X | X |
aAn Advance Directive comprises at least the appointment of a Healthcare Power of Attorney and a Living Will.
bHealthcare Power of Attorney is also known as Healthcare Agent, Healthcare Proxy, Healthcare Surrogate, Healthcare Attorney in Fact, or Healthcare Representative.
1Legal documents must be witnessed or notarized per the laws of your state. We have included your state’s requirements in the preface to your state’s Advance Directive (link). In general, you must be over 18 and of sound mind to complete the document.
2Medical orders require the signature of a medical professional, usually a Medical Doctor (MD). Some states allow Physician Assistants (PA’s) and Advance Practice Registered Nurses (APRN) to sign as well.
3In general, your wishes as stated in the Living Will portion of your Advance Directive will be honored. However, treating physicians do have discretion and are not bound by them in the way they would be by a DNR or POLST. They must honor your appointment of a Healthcare Agent and follow that person’s directions as your Healthcare Agent speaks on your behalf.
4Your Advance Directive is not valid outside of a medical environment. Therefore if 911 is called, in the absence of a DNR or POLST specifying DNR, you will be resuscitated and transported to the hospital by the EMTs. They are legally required to do so.
5Only your DNR and POLST are binding medical orders and must be followed by physicians. As mentioned, your appointment of a Healthcare Agent is valid inside medical environments. Usually, the Living Will portion of an Advance Directive is honored, but a physician is not legally required to do so.
6Only the DNR and POLST are honored by EMTs.
7It is an excellent idea to have a Healthcare Agent appointed at any age. Life is uncertain, accidents happen, sudden illness befalls, and having someone authorized to speak for you is a really good idea. Even better is when you have discussed with that person what you would want in such circumstances. It may be helpful to have memorialized your thoughts in an Advance Directive, but the appointment of the Healthcare Agent and the conversation(s) you have with them are the truly critical part.
8Once you have a serious illness, you know a lot more about what is likely to happen to you going forward, so completing a Living Will (whether part of an Advance Directive or not) becomes important. We are assuming you have already appointed a Healthcare Agent. If not, do so! You know whether you might require dialysis or be put on a ventilator, for example, and can clearly express your wishes given your medical condition.
9As the end-of-life approaches, it is possible (and desirable) to be more concrete about what you want. A DNR simply states that you will not be resuscitated if found without a heartbeat or respiration. A POLST allows you a DNR order if you want one, and provides for other options if you choose to be resuscitated. These options include specifying maximum treatment – a certain term of treatment before withdrawing it as well as for opting to be intubated and put on a ventilator or not- and receiving intravenous nutrition or not. You may also specify if you’d like comfort care only. In the absence of these orders, standard practice inside and outside of the hospital is to attempt resuscitation and maximum treatment. Many people do not want this and it can be difficult to undo once started.
10Both Advance Directives and POLSTs are state-specific forms. The POLST for your state may be found here and the Advance Directive for your state may be found here. You will find our state-specific Healthcare Power of Attorney form embedded in your state’s Advance Directive form.
Now that you know what you want, who you want to speak for you, have written it down on one or more forms, and have gotten the forms validated by the appropriate parties, what’s next?
Make sure all your hard work is useful when the time comes. What that looks like depends on where you are in the process; learn more about how you can make your choices known.
Do I Need An Attorney to Fill Out My Documents?
You do not need an attorney to fill out any of these documents. A medical professional is required to sign both a DNR and a POLST, but Advance Directives are either witnessed or signed. Each state has specific requirements about witnesses or notarization, but none require the services of an attorney.
People are often given an advance directive form to fill out when they are consulting with an attorney about their will or estate plan, but the forms can be downloaded and executed without legal input.
What happens if I don’t make any plans or appoint a Healthcare Agent?
If you do not choose someone in advance to speak for you and there comes a time you are unable to make your own decisions, there are state laws that help your healthcare providers determine who can make those decisions for you. Some states provide a specific order or priority. Others require a healthcare provider to notify a broader group of family who are the directed to decide who will be the decisionmaker. Some states do not have any provision for who will become the decisionmaker.
We have summarized the laws of each state in this regard on the same page of the state’s Advance Directive. If 911 is called in the absence of a POLST or DNR, you will be resuscitated and transported to the nearest ER and full treatment started.
Talking with others about the wishes in your healthcare documents may be a difficult undertaking. We have other resources about having conversations with your inner circle of loved ones and key decision makers to help this process go smoothly.
