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Advance health care directives, also known as living wills, advance directives, or advance decisions, are instructions given by individuals specifying what actions should be taken for their health in the event that they are no longer able to make decisions due to illness or incapacity. A living will is one form of advance directive, leaving instructions for treatment. Another form authorizes a specific type of power of attorney or health care proxy, where someone is appointed by the individual to make decisions on their behalf when they are incapacitated. People may also have a combination of both. It is often encouraged that people complete both documents to provide the most comprehensive guidance regarding their care.[1] One example of a combination document is the Five Wishes advance directive, that is available in the USA. According to Aging With Dignity, the organization that created and sells the Five Wishes document, it currently meets legal requirements in 42 states and the District of Columbia.[2] However, there is some concern among aging advocates that the Five Wishes forms include language that can be misleading and contradictory, potentially resulting in hospitals, providers, and loved ones not adhering to the wishes of the patient. Though the Five Wishes document may be a good tool for starting a discussion with your family and doctors, it is recommended that you complete separate legal documents that are valid in your state.

Contents

Background

Advance directives were created in response to increasing medical technology.[3][4] Numerous studies have documented critical deficits in the medical care of the dying. Frequently, death in health care facilities – where 80% of all deaths occur[5][6][7] – is unnecessarily prolonged,[8] painful,[9] expensive,[10][11] and emotionally burdensome to both patients and their families.[12][13]

Aggressive medical intervention leaves nearly two million Americans confined to nursing homes,[14] and over 1.4 million Americans remain so frail as to survive only through the use of feeding tubes.[15] As many as 30,000 persons are kept alive in comatose and permanently vegetative states.[15][16]

Cost burdens to individuals and families are considerable. A national study found that: “In 20% of cases, a family member had to quit work;” 31% lost “all or most savings” (even though 96% had insurance); and “20% reported loss of [their] major source of income.”[17] Yet, studies indicate that 70-95% of people would rather refuse aggressive medical treatment than have their lives medically prolonged in incompetent or other poor prognosis states.[18][19]

As more and more Americans experienced the burdens and diminishing benefits of invasive and aggressive medical treatment in poor prognosis states – either directly (themselves) or through a loved one – pressure began to mount to devise ways to avoid the suffering and costs associated with treatments one did not want in personally untenable situations.[4] The first formal response was the living will.

Living will

Refusal of treatment form

The living will is the oldest form of advance directive. It was first proposed by an Illinois attorney, Luis Kutner, in a law journal in 1969.[20] Kutner drew from existing estate law, by which an individual can control property affairs after death (i.e., when no longer available to speak for themselves) and devised a way for an individual to speak to his or her health care desires when no longer able to express current health care wishes. Because this form of “will” was to be used while an individual was still alive (but no longer able to make decisions) it was dubbed the “living will.”[21]

A living will usually provides specific directives about the course of treatment that is to be followed by health care providers and caregivers. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is used only if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: “If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.”

More specific living wills may include information regarding an individual's desire for such services such as analgesia (pain relief), antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. However, studies have also shown that adults are more likely to complete these documents if they are written in everyday language and less focused on technical treatments.[22]

Living wills proved to be very popular, and by 2007, 41% of Americans had completed a living will.[23] In response to public needs, state legislatures soon passed laws in support of living wills in virtually every state in the union.[24]

However, by the late 1980s public advocacy groups became aware that many people remained unaware of advance directives[25] and even fewer actually completed them.[26][27] In part, this was seen as a failure of health care providers and medical organizations to promote and support the use of these documents.[28] The public’s response was to press for further legislative support. The most recent result was the Patient Self-Determination Act of 1990,[29] which attempted to address this awareness problem by requiring health care institutions to better promote and support the use of advance directives.[24][30]

However, as living wills began to be better recognized, key deficits were soon discovered. Most living wills tended to be limited in scope[31] and often failed to fully address presenting problems and needs.[32][33] Further, many individuals wrote out their wishes in ways that might conflict with quality medical practice.[34] Ultimately, it was determined that a living will alone might be insufficient to address many important health care decisions. This led to the development of what some have called “second generation” advance directives[31] – the “health care proxy appointment” or “medical power of attorney.”

Living wills also reflect a moment in time, and may therefore need regular updating to ensure that the correct course of action can be chosen. Mangal Kapoor has recently written an article for the Mail Online discussing his experiences with his mother's living will and his concerns [35]

On July 28, 2009, Barack Obama became the first United States President to announce publicly that he had a living will and to encourage others to do the same. He told an AARP town meeting, "So I actually think it's a good idea to have a living will. I'd encourage everybody to get one. I have one; Michelle has one. And we hope we don't have to use it for a long time, but I think it's something that is sensible."[36] The announcement followed controversy surrounding proposed health care legislation that included language that would permit the payment of doctors under Medicare to counsel patients regarding living wills, sometimes referred to as the "infamous" page 425.[37]

Durable power of attorney and health care proxy

As before, the next generation advance directive was drawn from existing law – specifically from business law. Power of attorney statutes have existed in the United States since the days of “common law” (e.g., laws brought from England to the United States during the colonial period).[38] These early powers of attorney allowed an individual to name someone to act in their stead. Drawing upon these laws, “durable powers of attorney for health care” and “health care proxy appointment” documents were created and codified in law, allowing an individual to appoint someone to make health care decisions in their behalf if they should ever be rendered incapable of making their wishes known.[39] The appointed health care proxy has, in essence, the same rights to request or refuse treatment that the individual would have if still capable of making and communicating health care decisions.[40]

The primary benefit of second-generation advance directives is that the appointed representative can make real-time decisions in actual circumstances, as opposed to advance decisions framed in hypothetical situations, as recorded in a living will. This new advance directive was heartily endorsed by the American public, and supporting legislation soon followed in virtually all states.[41]

Eventually, however, deficits in “second-generation” advance directives were also soon noted. Primarily, individuals faced problems similar to those that handicapped living wills –- knowing what to tell the proxy decision-maker about one’s wishes in a meaningful way. Studies found most of what appointed proxies are told is too vague for meaningful interpretation.[42][43][44][45][46] In the absence of meaningful information, family and physician “guesswork” is found to be inaccurate as much as 76% of the time.[47][48][49][50][51][52][53][54] This continuing problem led to the development of what might be called “third generation” advance directives.

Third Generation Advance Directives

Third generation advance directives were designed to contain enriched content to assist individuals and their appointed agents, families, and physicians to better understand and honor their wishes. One of the earliest third-generation advance directives was the Values History,[55] created at the Institute of Public Law, University of New Mexico School of Law in 1988. It continues to be made available via the Hospice and Palliative Care Federation.[56] It is a “two-part advance directive instrument that elicits patient values about terminal medical care and therapy-specific directives.”[57] The goal of this advance directive is to move away from a focus on specific treatments and medical procedures to a focus on patient values and personal goals. One persistent criticism, however, is that it is too difficult to associate the elicited values and goals with medical care wishes.[58]

The next widely recognized third generation advance directive is the Medical Directive,[59][60] created by Emanuel and Emanuel of Massachusetts General Hospital and Harvard Medical School. Also still available,[61] it is a six-page document that provides six case scenarios for advance medical decision-making. The scenarios are each associated with a roster of commonly considered medical procedures and interventions, allowing the individual to decide in advance which treatments are wanted or not wanted under the circumstances. Several criticisms regarding this advance directive have been expressed.[60][62][63] Primarily, it prompts individuals to make medical treatment decisions, which they are typically not equipped to make.[62]

Perhaps the best known third generation advance directive is the Five Wishes directive.[64] This document was developed in collaboration with multiple experts with funding from the Robert Wood Johnson foundation,[65] and is distributed by the Aging With Dignity organization. The document was endorsed by Mother Teresa of the Sisters of Calcutta and by the Chief Justice of the Florida state supreme court. The document meets statutory criteria in 40 states.[64] Criticisms include: 1) the document records “wishes” or preferences rather than “directives,” which some see as less compelling;[66] 2) the appointed agent authorities are less complete than those found in other directives;[67] 3) some of its definitions used have been criticized as inadequate;[68] 4) its address of pain management appears insufficient to meet American Medical Association standards;[69] 5) it is not a valid directive in many states;[64] and, 6) addressing only five key areas appears to be too limited for comprehensive planning.

While some commentators suggest that any recording of one’s wishes is problematic,[62][70] the preponderance of experts recommend the completion of an advance directive document – especially one that includes both a living will and a proxy designation.[71][72] While most of the public continue to rely upon their state’s standard directive format, research demonstrates that many of these documents are too jargon laden and vague,[63][73][74][75] confusing,[76][77][78][79][80] and incomplete to adequately capture an individual’s wishes, and that they focus too much on the needs of medical and legal practitioners to the exclusion of the needs of patients.[81][82][83]

Some legal commentators have suggested that using a non-statutory advance directive will leave the user with a document that may not be honored. However, legal counsel for the internationally renowned Hastings Center for Bioethics[84] explicitly refute this assertion, supporting their views with ample legal clarification.[85] To make the best choice, individuals should consider reviewing several document styles to ensure that they complete the document that best meets their personal needs.

Legal situation by country

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The Netherlands

In the Netherlands, patients and potential patients can specify the circumstances under which they would want euthanasia for themselves. They do this by providing a written euthanasia directive. This helps establish the previously expressed wish of the patient even if the patient is no longer able to communicate. However, it is only one of the factors that is taken into account. Apart from the will in writing of the patients, at least two physicians, the second being totally unrelated to the first physician in a professional matter (e.g. working in another hospital, no prior knowledge of the medical case at hand), have to agree that the patient is terminally ill and that no hope for recovery exists.[citation needed]

Germany

On 18 June 2009 the Bundestag passed a law on advanced directive, applicable since 1 September 2009. Such law, based on the principle of the right of self-determination, provides for the assistance of a fiduciary and of the physician.

Switzerland

In Switzerland, there are several organizations which take care of registering patient decrees, forms which are signed by the patients declaring that in case of permanent loss of judgement (e.g., inability to communicate or severe brain damage) all means of prolonging life shall be stopped. Family members and these organizations also keep proxies which entitle its holder to enforce such patient decrees. Establishing such decrees is relatively uncomplicated.

However, in Switzerland, a patient decree has, as of November 2008, no legally binding effects, whether concerning civil nor criminal aspects. Such a decree is today merely viewed as representing the supposed will of the person with the incapability. There is, however, a revision of the Swiss Civil Code under way that aims to change this situation (intended to be article 360 of the Swiss Civil Code) by making the patient decree a legally binding document.[86][citation needed]

England & Wales

In England and Wales, people may make an advance directive or appoint a proxy under the Mental Capacity Act 2005. This is only for an advanced refusal of treatment for when the person lacks mental capacity and must be considered to be valid and applicable by the medical staff concerned.[87]

United States

In the United States, most states recognize living wills or the designation of a health care proxy.[88] For example California does not recognize a living will but instead uses an Advanced Health Care Directive.[89] However, a "report card" issued by the Robert Wood Johnson Foundation in 2002 concluded that only seven states deserved an "A" for meeting the standards of the model Uniform Rights of the Terminally Ill Act.[90] Surveys show that one-third of Americans say they've had to make decisions about end-of-life care for a loved one.[91]

In Pennsylvania on Nov. 30, 2006, Governor Edward Rendell signed into law Act 169, which provides a comprehensive statutory framework governing advance health care directives and health care decision-making for incompetent patients.[92] As a result, health care organizations make available a "Combined Living Will & Health Care Power of Attorney Example Form from Pennsylvania Act 169 of 2006."

References

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