Five Legal Myths About Advance Directives

JANUARY 16, 1995 VOLUME 2, NUMBER 28

Everyone should have a Living Will.

Without more, a Living Will is not the document most people need. Most people should have a Health Care Power of Attorney that names a trusted person as agent. A still better alternative is to execute both documents or a single, combined Advance Directive that names a proxy andprovides guidance about one’s wishes.

Written directives are not legal in every state.

Every state recognizes both the proxy and living will-type advance directives, although the laws of each state vary considerably in terminology, the scope of decisionmaking addressed, restrictions and the formalities required for making an advance directive. Many states (including Arizona) expressly recognize out-of-state advance directives if the directive meets the legal requirements of either the state where it is executed or the state where the treatment decision arises.

Just telling my doctor what I want is no longer legally effective.

While it is better to have a written directive, oral statements remain important both on their own and as supplements to written directives. Oral statements may have two important attributes. First, good health care decisionmaking requires good communication among all interested parties, and oral communication is our most natural and, indeed, primary mode of communication. Second, oral statements constitute important evidence of one’s wishes and help expand upon, clarify and reinforce individual preferences. The contents of a written advance directive should reflect a continuing conversation among the individual, physician, family and friends.

An advance directive means “Don’t Treat.”

While it is true that most people use advance directives to avoid being kept alive against their wishes when death is near, it is a mistake to assume that the existence of an advance directive means “don’t treat.” Advance directives can also be used to say that the individual wants allpossible treatments within the range of generally accepted medical standards.

When I name a proxy in my advance directive, I give up some control and flexibility.

An individual gives up no authority or choice by doing an advance directive. As long as the person remains able to make decisions, his or her consent must be obtained for medical treatment. Health care providers cannot legally ignore the patient in favor of the patient’s agent or written instruction.

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