While personal autonomy has long been recognized as a hallmark of modern society, patient autonomy has more recently emerged as a hallmark of modern medical ethics. Lynch, H., Mathes, M. and Sawicki, N., Compliance with Advance Directives: Wrongful Living and Tort Law Incentives, 29 Journal of Legal Medicine 133 (Apr.-June 2008). Federal law now recognizes an individual’s constitutional right to refuse medical treatment and aims “to ensure that a patient’s right to self-determination in health care decisions be communicated and protected.”  Gruber, W., Life and Death On Your Terms: The Advance Directives Dilemma and What Should Be Done In the Wake of the Schiavo Case, 15 Elder Law Journal 503, 509 (2007) (further citations omitted). But too often, a patient’s ability to retain control of his or her autonomy ends with the loss of the patient’s ability to comprehend or communicate treatment decisions. Therefore, particularly if your professional practice is devoted to our aging population, educating your clients about the use of advance directives may be the starting point of an ongoing dialogue to ensure that the client’s wishes are respected, even after his or her ability to communicate those wishes has ceased.

An “advance medical directive” (also known as a “health care advance directive” or “instruction directive”) is a written statement made by the patient concerning future health care wishes. American Bar Association, Division for Public Education, Law for Older Americans: Health Care Advance Directives, https://www.abanet.org/publiced/practical/directive_review.html. Advance directives consist of two parts: a “living will” and a “health care proxy” (a “health care power of attorney”). Id.

Living Will

A living will is a document in which a patient provides direction regarding medical treatments that the patient wishes to accept or refuse under various circumstances. The patient may provide itemized guidelines for carrying out future medical needs, in the event that he or she is unable to participate in making those decisions. Gruber, W., supra, 15 Elder Law Journal 503, 505 (2007)

The preferences specified in a living will may be made within the context of various hypothetical medical scenarios, such as if the patient is severely impaired cognitively; has a serious irreversible illness; has a terminal condition; or is permanently comatose.  Under these various scenarios, the patient may indicate preferences regarding such issues as nutrition and hydration, life-sustaining treatment, do-not-resuscitate (“DNR”) orders, do-not-hospitalize (“DNH”) orders, pain management, euthanasia, or compliance with a particular religion. The living will may express the preference to be cared for at home, instead of in a hospital or institution. It may also cover issues such as organ donation, autopsy, burial or cremation, and memorial services.

The living will provides guidance to medical providers and to the individual whom a patient may appoint as the health care proxy (discussed below). Its usefulness is limited, however, by the inherent difficulty involved in anticipating future medical problems, medical advances and personal issues. American Bar Association, supra, https://www.abanet.org/publiced/practical/directive_review.html.

Health Care Proxy

A health care proxy (“medical power of attorney”) is a document designating an agent (surrogate decision-maker) to act on the patient’s behalf with respect to medical decisions. A health care proxy may be written to give the agent limited or broad authority over the patient’s medical affairs, and it need not be restricted to decisions concerning end-of-life. A health care proxy document may be executed in conjunction with a living will. However, just as a living will may be a stand-alone document, a patient may choose to execute a health care proxy only, without a corresponding living will.

The health care proxy is more flexible than the living will because, as specific future medical issues and circumstances arise, the agent will have the opportunity to evaluate those circumstances, some of which may not have been contemplated or addressed by the patient in his or her living will. Id.

Interestingly, in one survey, patients reported wanting to exercise  control over their end-of-life decisions, but chose a living will that provided general statements regarding end-of-life decisions (such as the wish to die with dignity), rather than an overly specific living will. In conjunction with the broader living will, the patient would also designate a health care proxy who would have substantial authority to make specific decisions in a given situation, in order to carry out the patient’s generalized care goals. U.S. Department of Health & Human Services, Agency for Healthcare Research and Quality, Clinical Decisionmaking.

Because the health care proxy is potentially given vast powers and responsibilities, it is vital that the proxy be carefully chosen. It is also important for the patient to consider appointing an alternate health care proxy, in the event that the primary proxy is unable to serve.