Advance Directives

Nursing implications in ensuring the right of patient self-determination.

To view the Course Outline and take the test online, click here.

For a printer-friendly version of the exam you can print out, complete and mail in to ADVANCE, click here.

Learning Scope #372
1 contact hour
Expires Nov. 21, 2013

The goal of this continuing education offering is to provide nurses with current information on advance directives they can apply to their practice. After reading this article, you will be able to:

1. Compare and contrast the differences between a living will and a durable power of attorney.
2. Describe the legal basis for the federal PDSA and state law.
3. Discuss the nursing responsibilities for advance directives.

Advance directives are documents composed by competent patients that ensure the right of self-determination: the right of every individual to make their own decisions about their medical treatment, including the right to refuse such treatment. They allow for patient self-determination by enabling an individual, while competent, to write instructions or to appoint an agent to decide what medical care, if any, is desired if the individual later becomes incompetent.

This article will explain the legal basis for advance directives; describe living wills and durable powers of attorney, which are two types of advance directives; discuss how state laws differ in terms of the legal requirements and substance of advance directives; and offer guidance for compliance by nurses.

Legal Foundation

Both federal and state laws provide the legal basis for advance directives.

The federal Patient Self-Determination Act (PSDA), effective in 1991, defines an advance directive as "a written instruction, such as a living will or durable power of attorney for health care, recognized under state law and relating to the provision of such care when the individual is incapacitated."The law requires all hospitals, skilled nursing facilities, home health agencies, and hospice programs participating in Medicare and Medicaid (but not individual physicians) to provide written information about advance directives to all adult individuals who receive medical care from them.

Specifically, the information they provide to patients about advance directives must include: 1) written information about the individual's rights under state law to make decisions about their medical care, including the right to accept or to refuse medical or surgical treatment and the right to make advance directives; and 2) the healthcare provider's written policies respecting the implementation of these rights.

The healthcare provider's written policies and procedures must include the following requirements:

• to document in a prominent part of the individual's current medical record whether or not the individual has executed an advance directive;• not to condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive;

• to comply with state law respecting advance directives; and

• to provide (individually or with others) for education for both the staff and the community about issues concerning advance directives.

The PSDA also specifically states when this written information must be provided by a healthcare provider to an adult individual. The timing varies by the type of provider as follows:

• Hospital - at the time of admission as an inpatient

• Skilled nursing facility - at the time of admission as a resident

• Home health agency - in advance of the individual coming under the care of the agency

• Hospice program - at the time of initial receipt of hospice care by the individual from the program.

Medicare Conditions

Medicare's Conditions of Participation (COPs) for hospitals define the requirements hospitals must meet to participate in the Medicare program. The COPs for advance directives became effective in 1991, the same year the PSDA became effective, and the requirements mirror those of the PSDA described above.

Additionally, in 1999, a new "Patients' Rights" section was incorporated into the COPs that provide:

• patients have the right to participate in the development and implementation of their plan of care;

• patients have the right to make informed decisions regarding their care, including the right to be informed about their health status, diagnosis, and prognosis, and to refuse or request care;

• patients have the right to delegate decision-making authority to another person;

• if a patient is unable to make a decision, the hospital must consult the patient's advance directive, durable of attorney, or patient representative;

• patients may provide guidance to their wishes in advance directives;

• patients may delegate decision-making to another in a durable power of attorney as permitted by state law;• patients have the right to have relevant information provided to their durable power of attorney if the patient becomes incompetent, but patients who later become competent have the right to have relevant information provided to them;

• the right to make informed decisions presumes the hospital provided the patient with information about their health status, diagnosis and prognosis, so hospitals must assure that each patient or their representative is given this type of information; and

• patients have the right to formulate advance directives, have hospital staff and practitioners consult advance directives when a patient is unconscious or incapacitated, and have practitioners and staff provide care that complies with these directives.

State Laws

The federal PSDA and COPs generally require providers to talk to patients about advance directives and to give them written information about their rights; however, the form and substance of an advance directive, and when an advance directive becomes operational, is dictated by state law.

All 50 states and the District of Columbia have enacted laws that permit the use of advance directives, specifically living wills and durable powers of attorney (also called a "healthcare proxy," "healthcare agent," "healthcare representative" or "medical power of attorney" by some states).

Note that two states, Massachusetts and Michigan, do not have any provisions for a living will, only for a "healthcare proxy" and a "patient advocate for healthcare," respectively. Some states, like Pennsylvania, allow individuals to combine the living will and durable power of attorney into one document.

Living Will & Power of Attorney

The two primary advance directive forms are living wills and durable power of attorney. An easy way to understand the difference between a living will and a durable power of attorney is to compare them to a traditional will and power of attorney. A living will is an adaptation of the traditional last will and testament, which allows an individual to direct the disposition of an estate.

With a living will, however, competent individuals direct, in advance of need for it, the medical treatment they want to receive (or not receive) if they develop an incurable or irreversible condition that will inevitably cause death and they are no longer able to make decisions about their own medical care. In other words, living wills focus on life-sustaining treatment and other end-of-life care when an individual is in a terminal condition or permanent state of unconsciousness.

Similarly, a durable power of attorney is an adaptation of the traditional power of attorney, which allows an individual to vest a surrogate with authority to make decisions regarding her property. With a durable power of attorney, competent individuals instruct and empower a surrogate to make decisions regarding their medical care in the event that they become incompetent, regardless of whether or not they are terminally ill.

A durable power of attorney may also vest someone else with medical decision-making authority even when the individual is competent. In contrast to living wills, durable powers of attorney are not restricted to end-of-life decision-making; they generally may direct the provision, continuation, withholding or withdrawal of all forms of medical care from the individual.

In addition to different forms, state laws regarding advance directives may vary in the following ways:

• Definitions. States differ in how they define terms that will trigger the need to comply with the terms of an advance directive. But generally, the patient must have been competent when the advance directive was written and the advance directive becomes effective when the patient subsequently becomes "incompetent" or "incapacitated" or "permanently unconscious" and experiences an "end-stage medical condition" or "terminal condition" which could require "life-sustaining treatment," etc. Knowing how these terms are defined and whether these types of definitions are met is crucial to determining when to follow advance directives.

Who can execute an advance directive. States may have different requirements for who may sign an advance directive; for example, while all states require individuals to be age 18 or older, some alternatively allow individuals less than 18 years old who are high school graduates or married to execute advance directives.

Who can (and cannot) sign on behalf of and at the direction of the patient. All states require a person who signs on behalf of and at the direction of the patient to be at least 18 years old. Some states place limitations on who can sign for the patient by stating that this person cannot also be a witness, or that this person cannot be the patient's physician or other healthcare provider.

How many witnesses are required. The witness requirements for advance directives also varies; for living wills, the witness requirement ranges from zero to two witnesses (or a notary), while witness requirements for durable powers of attorney are slightly stricter, with most states requiring two witnesses.

Who can (or cannot) be a witness. While most states require that witnesses to the signing of advance directive must be age 18 years or older, they may vary in terms of who may be the witness. For example, some states specify a person who also signed for the patient may not also be a witness.

Pregnancy. More than half the states expressly provide that living wills and durable powers of attorney are not valid if the patient is pregnant, while others may place special limitations on the right of self-determination if the patient is pregnant.

Revocation. States may vary on how a living will may be revoked; for example, Pennsylvania law states that a living will can be revoked at any time and in any manner by the patient without regard to the patient's mental or physical condition, and further provides that a revocation is effective once communicated to the attending physician or other healthcare provider by either the patient or a witness to the revocation; some states like Pennsylvania require a revocation to be documented in the patient's medical record.

Changing the terms of the living will. In addition to being able to revoke a will, many states provide that an individual can change or rewrite a living will and dictate how that is to be done. For example, the state may require an individual to destroy the old living will and give a copy of any new instructions to their family, doctor, healthcare provider and anyone else who had a copy of the old living will with the old instructions.

Immunity from liability for healthcare providers. Some states, including Pennsylvania, Connecticut, Florida and New Jersey, provide immunity from liability for healthcare providers who initiate, continue, withhold or withdraw medical treatment from an incompetent patient if they believe in good faith they are acting in accordance with the terms of the patient's living will or the directions of a duly authorized healthcare agent or representative. This can include immunity from criminal or civil liability, discipline for unprofessional conduct or administrative sanctions.

Keep copy in patient record. While the PSDA requires providers to ask individuals if they have an advance directive and to document in a prominent part of the individual's current medical record whether or not the individual has executed an advance directive, some states take this one step further and require providers who are presented with an advance directive to place a copy in the patient's medical record.

• Compliance by healthcare provider. Some states also include a provision that if a healthcare facility and/or the attending physician and other healthcare providers will not act in accordance with the provisions of a living will, they must comply with transfer provisions laid out in the statute to transfer the patient to a facility that will honor the terms of the patient's living will. (Q#10)

Nursing Considerations

Because state laws vary, it is important that nurses be familiar with advance directive law of the state in which the nurse practices. Keep the following points in mind:

• Make sure the medical record includes information about whether or not the patient has an advance directive. Remember they may have more than one type of advance directive.

• If the medical record states the patient has an advance directive, make sure a copy of the patient's advance directive is in the patient's medical record. Also make sure that if a patient has more than one type of advance directive, copies of all of the patient's advance directive are in the medical record.

• Confirm a living will and/or a durable power of attorney meets legal requirements (signed, witnessed, notarized if applicable, etc.).

• If patients say they want to revoke or change their living will and/or durable power of attorney, follow your facility's procedure on how to handle the situation. For example, you may be required to record this in their medical record and/or assist the patient to make sure a living will and/or with the new requirements is appropriately drafted, executed and witnessed.

• Make sure you read the patient's advance directive; do not assume you know what it says or rely on what the patient and/or their family tell you it says.

• Go over the terms of the patient's living will and/or durable power of attorney with the patient and the patient's family members and/or decision-makers. (Q#8)

• Once the attending physician documents that the patient's condition meets the criteria that triggers use of a patient's advance directive, healthcare providers must comply with the terms of the advance directive. This includes compliance with healthcare decisions made by agents and representatives to the same extent as if the decision had been made by the patient.

• Encourage patients to discuss advance directive options with their families and to seek legal guidance in drafting advance directives as appropriate.

To view the Course Outline and take the test online, click here.

For a printer-friendly version of the exam you can print out, complete and mail in to ADVANCE, click here.

Renee H. Martin is a member of the healthcare law firm of Tsoules, Sweeney, Martin & Orr, LLC in Exton, PA. The author has completed a disclosure form and reports no relationships relevant to the content of this article.




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