An advance medical directive is a legal document that allows a person to state what they want for their own medical care if they are unable to make decisions for themselves due to incapacity.
An Advance Medical Directive may be used to:
- specify what the person executing the directive (known as the declarant) does or does not authorize with regard to his or her healthcare;
- appoint an agent or a third party to make healthcare decisions for the declarant; and
- specify anatomical gifts of a specific part or parts of the declarant’s body, or the declarant’s entire body, for organ and tissue donation.
Executing an Advance Medical Directive
Per Virginia Code § 54.1-2983, in order to be a legally binding document an advance medical direct must be signed by the declarant in the presence of two witnesses who also sign the directive.
Additionally, a verbal or oral statement may be legally binding when a declarant who is capable of making an informed decision has been diagnosed by an attending physician with a terminal condition. In such a case, the person may direct the specific healthcare he or she does or does not authorize in the event he or she becomes incapable of making an informed decision. A verbal or oral advance medical directive must be made in the presence of the attending physician and two witnesses.
An advance medical directive can be used to state the declarant’s wishes regarding life-prolonging medical treatments, such as feeding tubes for nutrition, IV fluids for hydration, cardiopulmonary resuscitation (CPR), ventilator/respirator (breathing machines), dialysis, and antibiotics. The declarant can specify if he or she wants all life-prolonging treatment options to be used, no such options to be used (thus becoming what is generally known as a Do Not Resuscitate (DNR) patient), or a combination of some medical treatments but not others to be used.
The advance medical directive can also state whether or not the declarant wishes to receive pain medication to make the declarant comfortable.
Additionally, an advance medical directive can specify the time or duration after which medical treatment should be stopped if the declarant’s medical condition does not improve. The declarant may also give his or her agent the discretion to determine when to stop treatment after discussions with the declarant’s treating or attending physician.
An advance medical directive can be used to appoint an agent and authorize that agent to take any lawful actions necessary to carry out the declarant’s wishes, or otherwise to make decisions as to the declarant’s medical care. Such actions may include, but are not limited to, the following:
- consenting to, or refusing or withdrawing consent to, any type of medical treatment, including but not limited to feeding tubes, IV fluids, CPR, breathing machines, dialysis, and antibiotics;
- requesting, obtaining, and reviewing any verbal or written information regarding the declarant’s physical and/or mental health, including medical and hospital records;
- consenting to the disclosure of the declarant’s medical and/or hospital records in order to carry out the declarant’s instructions in the advance medical directive;
- employing and discharging health care providers;
- authorizing declarant’s admission, transfer, or discharge to or from a hospital, hospice, nursing home, assisted living facility or other healthcare facility;
- authorizing declarant’s admission to a healthcare facility for treatment of mental illness as permitted by Virginia law;
- making decisions regarding third party visitation with the declarant while the declarant is admitted to a healthcare facility; and
- granting releases of liability to medical providers.
A declarant may also specify in an advance medical directive whether or not he or she wants to be an organ or tissue donor. The declarant may state a wish to donate specific organs, including eyes, skin, and tissue, or his or her entire body. The declarant may also provide that he or she does not want to be an organ donor at all.
Organ donation generally includes not only includes transplant surgery, but also donation for therapy, research, and educational uses. However, a declarant may specify his or her wish to donate organs for transplant surgery, but not for any other purpose.
Notice of an Advance Medical Directive
Virginia Code § 54.1-2983 requires that the declarant provide notice that he or she has completed an advance medical directive to his or her attending physician. Upon being notified by the declarant, the attending physician must make a copy of the advance medical directive a part of the declarant’s medical records. Additionally, if the declarant submits the advance medical directive to the Advance Health Care Directive Registry, the declarant is also responsible for providing his or her attending physician, legal representative, or other person with the information necessary to access the advance medical directive.
Incapacity of Declarant
A declarant may be incapacitated due to a loss of consciousness or other serious impairment of the ability to make informed decisions regarding his or her own health care. In such an event, Virginia Code § 54.1-2983.2 provides that an attending physician shall (a) certify in writing upon personal examination of the declarant that the declarant is incapable of making an informed decision regarding his or her healthcare and (b) obtain a written certification from a capacity reviewer that the declarant is incapable of making an informed decision based upon the physician’s personal examination of the declarant. The capacity reviewer cannot be involved in the declarant’s treatment, unless no other independent capacity reviewers are reasonably available. The certification is not needed if the declarant is unconscious or experiencing a profound impairment of consciousness because of trauma, stroke, or some serious physiological condition, such as Alzheimer’s, dementia, and Parkinson’s Disease.
An attending physician must make a finding with regard to whether the declarant is incapable of making healthcare decisions prior to providing, continuing, withholding or withdrawing health care pursuant to an advance medical directive. The attending physician is also required under Virginia law to assess no less frequently than every 180 days the declarant’s capacity while the need for health care continues.
Revocation of an Advance Medical Directive
Lastly, Virginia Code § 54.1-2985 provides that a declarant who is capable of understanding the nature and consequences of his or her actions may revoke all or part of an advance medical directive at any time, by one of three means:
- the declarant signing and dating a written document;
- the declarant (or someone in the presence of and at the direction of the declarant) physically cancelling or destroying the advance directive; or
- the declarant verbally expressing his or her intent to revoke the advance medical directive.
If a declarant revokes part of the advance medical directive, the remaining and non-conflicting provisions shall remain in effect. If a declarant revokes his or her designation of an agent, then Virginia law governs as to the declarant’s capacity to make healthcare decisions.
As with notifying an attending physician of the existence of an advance medical directive, the declarant must inform his or her attending physician of any revocations to his or her advance medical directive.
As one can see, an advance medical directive is no “one size fits all” document. If you are interested in an advance medical directive, be sure to meet with an experienced estate planning attorney regarding your specific wishes and needs.