Advance Directives
Michael A. Gillette, Ph.D.

The most important action that we can take to help ourselves and our families prepare for difficult choices that we may face in the future is to talk. Fortunately, in the Commonwealth of Virginia, there is a tool that exists under State law that can help in this regard. In Virginia, every adult citizen who has the capacity to make his or her own health care decisions can fill out an advance directive. An advance directive can be obtained from your doctor, from the hospital, or from your attorney. You do not need the assistance of an attorney to fill out an advance directive, and you will be offered the opportunity to create an advance directive if you are ever admitted to the hospital.

The advance directive allows you to do three things. First, you can complete the "living will" portion of the form. This section allows you to communicate your wishes regarding care if you ever become terminally ill or are in a state of deep, permanent unconsciousness known as a persistent vegetative state. Most people use this section of the advance directive to communicate their desires to avoid being maintained in such a condition by artificial means. Under Virginia law, the provision of food and fluids by artificial means is considered life-prolonging care and it can be refused by a patient in the living will portion of your advance directive.

The second portion of the advance directive is the "Durable Power of Attorney for Health Care". This section allows a patient to assign a specific individual to make health care decisions in the event that the patient is incapable of doing so. The advantage of the durable power of attorney is that the patient does not have to be terminally ill or in a persistent vegetative state for the assignment of a surrogate decision-maker to take effect. If you are injured and incapacitated, but not terminally ill, then your living will does no good. If you want a particular person to make decisions for you in such a circumstance, then you must assign that power through a durable power of attorney for healthcare.

There are two important points to remember about durable powers of attorney for health care. First, a general power of attorney will not do! You may have assigned a power of attorney for legal or financial matters, but you need a special durable power of attorney for healthcare decision making. Second, your next of kin will have the power to make decisions for you if you are incapacitated and have left no advance directive. If you want someone other than your legal next of kin to make your health care decisions, then you must make that clear in an advance directive. You will also have the option on the form to specify any limitations that you wish to place on the powers of your agent.

The third portion of the advance directive allows you to make an anatomical gift. If you want to donate your organs upon your death, you can use the advance directive form to make that desire clear.

From an ethical point of view, the advance directive form is important, but it is only the tip of the iceberg. Much more is needed if you want to avoid the most dangerous pitfalls of our modern medical world. What is truly needed is improved communication. Fortunately, an advance directive is an excellent tool to help start conversations.