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Guide to Advance Directives for Health Care

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USLegal Guide to Advance Directives for Health Care

© 2016 - U.S. Legal Forms, Inc.

Introduction

Advance directive is a broad term that describes various documents used to express a person’s desires and instructions to take effect in the event the person is unable to act in her or his own behalf. Examples of advance directives include living wills, powers of attorney for health care, do not resuscitate (DNR) orders, and anatomical gift donations.

An advance care directive is a document that specifies the care a person wishes to receive in case that they are unable to communicate their wishes, such as being in a coma. To be enforceable, the person making the directive must be of sound mind, meaning that they are still able to think rationally and communicate their wishes in a clear manner. The document must be signed and notarized according to the laws in your state. Laws governing advance care directives vary by state, so local laws should be consulted for specific requirements in your area.

You should provide your doctor and your hospital with copies of your advance directives for your permanent medical record. Any time you are admitted to a hospital, you may be asked if you have a such a document and your response noted in your medical record.

You’re not required to have an advance directive if you don’t want one, but it’s a good idea in order to guarantee that your wishes are followed regarding medical care. Otherwise, your family will have to make difficult decisions or incur large expenses and time delays if a legal guardianship or conservatorship is needed. If you become incapacitated and you have no living will or power of attorney for heath care, and your doctor and your family disagree about treatment, your health care decisions may have to be made in a court of law.

Living Wills

A living will is a document that allows a person to explain in writing which medical treatment he or she does or does not want during a terminal illness. A terminal illness is a fatal illness that leads ultimately to death. A living will takes effect only when the patient is incapacitated and can no longer express his or her wishes. The will states which medical treatments may be used and which may not be used to die naturally and without the patient’s life being artificially prolonged by various medical procedures.

Although the term living will may indicate that it is a will, in reality, it is more similar to a power of attorney than a will. Therefore, don't be confused by the title of the document. The purpose of a living will is to allow you to make decisions about life support and direct others to implement your desires in that regard.

Living wills are needed because advances in medicine allow doctors to prolong and sustain life although the person will not recover from a persistent vegetative state. Some people would not desire to remain in that state while others would. Extending life when death is imminent to some people is only extending the suffering and prolonging of the dying process.

The living will allows you to make the decision of whether life-prolonging medical or surgical procedures are to be continued, withheld, or withdrawn, as well as when artificial feeding and fluids are to be used or withheld. It allows you to express your wishes prior to being incapacitated. Your physicians or health care providers are directed by the living will to follow your instructions. You may revoke the living will prior to becoming incapacitated.

Laws governing living wills vary by state. Some states require two witnesses to witness your signature or that the form be signed in the presence of a notary public, or both. If the will provides for the appointment of an agent, the agent appointed should not also be a witness to your signature. The agent appointed to carry out your wishes is sometimes called a health care representative.

The living will generally becomes operative when it is provided to your physician or health care provider AND you are incapable of making health care decisions for yourself, such as where you are permanently unconscious or terminally ill and unable to communicate.

Power of Attorney for Health Care

A durable power of attorney for health care is a power of attorney where the principal appoints an agent to make health care decisions for the principal and is remains effective even after the incompetence of the principal. It is often used as a form of advance health care directive.

In some states, a living will takes effect only when there is no hope for recovery, while a durable power of attorney takes effect whenever you become unable to make decisions such as during surgery or even when you become temporarily unconscious.

In most states it comes into effect after your doctor certifies that you lack the capacity to make your own health care decisions. Some states allow it to be effective immediately after it is properly executed and delivered to the agent. It is effective indefinitely unless it contains a specific termination date, it is revoked, or the principal regains consciousness and competency.

You may have several close relatives or friends who would be willing to become your attorney-in-fact for health care purposes. An attorney-in-fact is the person named in a written power of attorney document to act on behalf of the person who signs the document, called the principal. The attorney-in-fact’s power and responsibilities depend on the specific powers granted in the power of attorney document. An attorney-in-fact is an agent of the principal.

This person should be able to make tough decisions, to speak up in a crisis situation, to understand your values and desires and would speak for you when you are unable to speak for yourself?

You should someone you trust and who will really listen to and carry out your desires and values. Make sure that person is willing to assume the responsibility of being your representative. The attorney-in-fact must be at least 18 years old.

Generally, in order to be valid, your Power of Attorney for Health Care must be signed in the presence of two or more witnesses. The witnesses must also meet certain requirements. They:

■ must be at least 18 years of age;

■ cannot be related to you by blood or marriage;

■ cannot be an heir to any portion of your estate; and

■ cannot be directly responsible for your medical care expenses.

Do Not Resuscitate Orders

A do not resuscitate order is an advance directive that is to be followed when a person's heart or breathing stops and they are unable to communicate their wishes to refuse treatment that could allow them to die. Laws regarding do not resuscitate orders vary by state, so local laws should be consulted for specific requirements in your area.

For example, in one state, a competent adult or the legally appointed advocate of an incompetent adult must sign the form and must be 18 years of age or older and be of sound mind. The document also must be signed by the individual's attending physician and two witnesses. If you have religious or other objections to care by a physician you can create a document that does not require a physician's signature. By law, your family, physicians and employees of your health care facility are not allowed to be witnesses for this form. The document accessible and in his or her possession. As an alternative, a person may wear a bracelet alerting emergency personnel to the Do Not Resuscitate Order.

A patient with a DNR Comfort Care-Arrest Order (DNR-CC-ARR) will receive all the appropriate medical treatment, including resuscitation, until the patient has a cardiac arrest (heart has stopped beating) or pulmonary arrest (patient has stopped breathing), at which point only comfort care will be provided. Under a DNR Comfort Care Order (DNR-CC), a patient rejects other resuscitative measures, such as drugs to correct abnormal heart rhythms. A DNR-CC order is restricted to providing only comfort care or other requested treatment at a point even before the heart or breathing stops. Comfort care involves keeping the patient comfortable with pain medication and providing bereavement care.

Anatomical Gift

When people make plans for their final disposition after death, many choose to donate all or part of the body to medicine. It's a generous gesture. But because there are different types of anatomical gifts, it is important for people to understand more about them before they make a decision. There are actually two kinds of anatomical gifts: body donation for medical research and organ donations for transplants. Usually a body is donated for one of these purposes, but not both.

According to the Uniform Anatomical Gift Act, a model law created in 1968 to provide guidance to states passing their own laws, any person older than age 18 may agree to donate all or any part of his or her body after death. Many states allow people to become organ donors simply by filling in a space on their driving license. If a person has never indicated that he or she wants to be an organ donor, doctors can get permission from members of his or her family in this order of priority: spouse, adult son or daughter, parent, adult sibling or guardian.

Resources

For links to state-specific laws, please see the information at the following link:

http://livingwills.uslegal.com/

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What a Guide to Advance Directives for Health Care Covers

A Guide to Advance Directives for Health Care explains the legal documents that record a person's health care preferences and appoint a decision-maker if they cannot communicate. Typical elements include a living will, durable health care power of attorney, and a HIPAA release. The guide clarifies required fields, witness and notarization rules that vary by state, options for electronic signing under ESIGN and UETA, and practical steps for sharing the completed directive with providers, agents, and family members.

Why completing an advance directive matters

Advance directives preserve patient autonomy, name a surrogate decision-maker, and reduce uncertainty for clinicians and loved ones. A clear, legally effective directive helps ensure care aligns with the patient’s values, can prevent family conflict, and enables timely medical decisions while documenting consent and HIPAA authorizations for information sharing.

Why completing an advance directive matters

Who typically completes or manages these directives

Advance directives involve multiple parties across clinical and legal settings.

  • Patients and adults planning for future incapacity — Prepare instructions and name an agent to make health decisions.
  • Health care providers and hospitals — Maintain copies in the medical record and honor legally valid directives.
  • Legal and estate advisors — Draft state-compliant forms and advise on witnessing, notarization, and revocation procedures.

Each role helps ensure the directive is accessible, current, and legally enforceable when needed.

Common signer and agent roles

Patient

The individual whose health care decisions the directive covers; must have capacity when signing and should provide clear preferences to guide surrogate decisions and clinicians.

Health Care Agent

Person appointed to make medical decisions when the patient lacks capacity; should be reachable, understand the patient's wishes, and be willing to access medical records if authorized.

Key information typically required

Full legal name: As on government ID
Date of birth: MM/DD/YYYY format
Agent name and contact: Phone and address
Alternate agent: Backup decision-maker
Specific treatment wishes: CPR, ventilation, feeding
Signature and date: Signer initials and dated

Risks if the directive is incomplete or incorrect

Invalid execution: May be unenforceable
Wrong agent named: Decisions delayed
Missing witness: State refusal possible
HIPAA breach: Unauthorized access risk
Conflicting forms: Creates legal disputes
Outdated preferences: May not reflect wishes

Common preparation mistakes to avoid

  • Using ambiguous language about treatment choices that leaves clinicians uncertain about the patient’s true preferences during an emergency.
  • Failing to check state rules for witness or notarization requirements and assuming one state’s form will be valid in another jurisdiction.
  • Not sharing copies with the named agent, primary care provider, and hospital, which can delay recognition and implementation of the directive.
  • Relying on unsigned or undated forms, or circulating scanned unsigned copies that do not meet execution requirements under state law.

Real-world scenarios where advance directives help

Two brief scenarios show how a clear directive improves decision making and reduces administrative delays.

Hospital Example

An elderly patient admitted after a stroke had a living will and agent identified

  • Hospital staff used the agent’s HIPAA release to access records quickly
  • The agent guided care according to documented preferences, avoiding unnecessary interventions and aligning treatment with the patient's wishes.

Home Care Example

A person with progressive illness completed a directive before cognitive decline

  • The directive specified hospice and no prolonged ventilation
  • Home health clinicians coordinated with family and hospice promptly based on the written directive, preventing emergency escalations inconsistent with goals.

Step-by-step: completing an advance directive

Follow these essential steps to create a clear, enforceable advance directive that reflects current wishes and meets state requirements.

  • 01
    Gather information: Collect full legal name, DOB, and contact details.
  • 02
    Choose an agent: Name primary and alternate decision-makers with contact info.
  • 03
    Specify preferences: Describe wishes for life-sustaining treatments and comfort care.
  • 04
    Execute properly: Sign, date, and complete required witness or notary steps.

Where to send and store the completed directive

Distribute the directive to clinical and personal contacts so it can be retrieved when needed.

  • Primary care provider: Place a copy in the medical record.
  • Named agent: Give original or certified copy to the agent.
  • Hospital or specialist: Provide copies on admission or during care transitions.
  • Personal records: Keep original in an accessible, secure location.

Core elements included in a professional guide

A complete guide explains each document component, legal execution steps, and how to align forms with state law and clinical practice.

Durable Power of Attorney

Names the health care agent, describes their authority, and sets limits or conditions; includes contact details and whether the agent can access medical records under HIPAA.

Living Will

Records preferences about life-sustaining treatments such as resuscitation, mechanical ventilation, and artificial nutrition, with clear, specific language to guide clinicians.

HIPAA Release

Authorizes designated persons to receive protected health information and ensures the agent can obtain medical records needed to make informed decisions.

Organ Donation

Specifies intent regarding tissue and organ donation and any registry enrollment, ensuring compatibility with state donor registries and facility protocols.

Witness and Notary Sections

Shows required witness attestations or notary blocks, and explains who is disqualified from serving as a witness under applicable state statutes.

Revocation Instructions

Explains how to revoke or replace the directive, how to communicate revocation to providers and agents, and how to document changes properly.

Practical tips for accuracy and reliability

Adopt these practices to increase the directive’s legal strength and clinical usefulness.

Use state-specific statutory language
Whenever possible, use forms or language that follow the state statute for advance directives so execution requirements and definitions match local rules and reduce the risk of refusal.
Keep multiple copies accessible
Provide copies to your agent, primary care provider, and local hospital; keep the original in a known location and consider placing a copy with your attorney or a medical records portal.
Review periodically and after major events
Revisit the directive after diagnosis changes, hospitalizations, new relationships, or changes in the law to confirm agents, preferences, and contact details remain current.
Document communications with clinicians
When preferences are discussed with providers, document the conversation in the medical record to reinforce the written directive and assist surrogate decision-making.

Timing and review considerations

There are no federal filing deadlines for advance directives, but timing affects effectiveness and legal standing.

When to complete:

Complete while you have decision-making capacity; before major procedures or illness.

Effective date:

Most directives take effect upon signer’s incapacity or as specified in the document.

Regular review:

Review every 1–3 years or after major health changes.

Before hospitalization:

Provide copies at admission to ensure they are in the medical chart.

Updating timing:

Execute a new directive to supersede earlier versions when preferences change.

Digital signing and storage technical requirements

Use platforms that provide secure storage, audit trails, and integration with clinical systems where required.

  • signNow integrations: Salesforce, Microsoft 365, NetSuite
  • File formats: PDF, DOCX, HTML supported
  • Security standards: TLS 1.2/1.3; AES-256 at rest

Ensure any chosen platform supports HIPAA (BAA), detailed audit logs, and the authentication level your state or institution requires.

Configuring an online completion workflow

A simple workflow ensures accurate completion, secure signing, and distribution to all stakeholders.

Field Configuration
Form template Use a state-specific template to match statutory language
Authentication Support email, SMS code, or KBA per state needs
Notifications Auto-email copies to agent and providers
Audit trail Enable timestamps, IP, and signer events

eSignature vendor comparison for advance directive workflows

Costs and compliance features vary by vendor; choose a solution that meets HIPAA, audit trail, and authentication needs without assuming similar plan limits.

signNow DocuSign Adobe Sign PandaDoc HelloSign
Starting Price $8/user/mo $15/user/mo $14/user/mo $19/user/mo $15/user/mo
Free Trial 7-day free trial (no card) Varies Varies Varies Varies
Bulk Send Yes Yes Yes Yes No
Audit Trail Yes Yes Yes Yes Yes
HIPAA Compliant Yes Yes Yes No No
Envelope Cap No envelope cap 100 envelopes/user/year Varies by plan Varies by plan Varies by plan

Key processing milestones from drafting to implementation

Track milestones so execution, distribution, and record updates occur without delay.

01

Draft Complete

Finalize language and agent choices before signing.

02

Execution

Sign with witnesses or notary in required order.

03

Distribution

Provide copies to agent and providers immediately.

04

Chart Update

Place the directive in the medical record and note in clinician notes.

Frequently asked questions about advance directives

Answers to common legal and practical questions about preparing, signing, and using advance directives in the United States.


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