Advance Directive: Types, Forms, and How to Create One

A living will is also referred to as a healthcare declaration, directive to physicians, healthcare directive, or an advance medical directive.

A medical power of attorney, on the other hand, is also referred to as a power of attorney for health care, designation of surrogate, healthcare power of attorney, and patient advocate designation depending on the state in which you reside.

What is a healthcare agent?

A healthcare agent, also referred to as a patient advocate, healthcare proxy, surrogate, or healthcare representative, is an individual you appoint in a durable power of attorney. Once the power of attorney is signed and dated, this person is authorized to carry out your healthcare wishes should you be unable to make decisions yourself.

You limit the agent's authority by adding details to the power of attorney that explain what they can and cannot, do on your behalf. State law may also limit the agent's authority. The power of attorney is usually accompanied by a healthcare declaration.

Usually, an agent is a close friend or family member over 18 years of age. The following are normally restricted and cannot be appointed as a healthcare agent:

• A healthcare supervisor, employee, operator, or owner of a healthcare facility in which you are receiving treatment or reside
• Your attending physician unless he/she is a relative by blood or marriage
• Your conservator.

Make sure to check your state requirements as states have different variations and/or requirements for agent eligibility.

Relationship between power of attorney and advance directives

A common point of confusion is whether a power of attorney can override an advance directive. The answer is no—these documents work together rather than compete with each other. A healthcare power of attorney is actually one component of your advance directive, not a separate document that supersedes it.

• An agent's role is to interpret your documented wishes and apply them to specific medical situations that may arise.
• Your healthcare agent is legally bound to follow the wishes you've expressed in your living will or healthcare declaration. If you've stated that you don't want to be kept on a ventilator in a terminal condition, your agent cannot override that instruction.
• When your advance directive doesn't address a particular treatment decision, your agent has the authority to make that choice based on what they believe you would have wanted.

Choosing an agent who understands your values and having detailed conversations with them about your preferences is so important. The more specific your written instructions, the clearer the guidance your agent has to follow.

How to obtain advance directive forms

Advance directive forms are widely available at no cost, but you'll need to use forms that comply with your state's specific legal requirements. Each state has its own rules about what must be included, how the document must be witnessed, and whether notarization is required.

You can obtain state-specific advance directive forms from several reliable sources:

• State attorney general or health department websites. Most states provide free, downloadable forms that meet all legal requirements.
• Hospitals and healthcare providers. Your doctor's office or local hospital can often provide forms and help you understand what needs to be completed.
• Nonprofit organizations. Groups like AARP, state bar associations, and legal aid organizations offer free forms along with instructions.
• Online legal services. Platforms like LegalZoom provide state-compliant forms with guided assistance to ensure you complete them correctly.

When selecting a form, verify it meets your state's current requirements. Look for information about witness requirements. Most states require two adult witnesses who are not beneficiaries of your estate. Some states also require notarization for the document to be legally valid. Using an outdated or out-of-state form could result in your directive being unenforceable when you need it most.

After completing your forms, keep the original in an accessible location such as a home filing cabinet or with your important papers. A safety deposit box may be difficult for family members to access in an emergency.

Who should receive a copy of your advance directive?

Creating an advance directive is only effective if the right people can access it when needed. Distribute copies to the following individuals and organizations:

• Your healthcare agent and any alternate agents you've named
• Your primary care physician and any specialists you see regularly
• The hospital or healthcare facility where you typically receive care
• Close family members who may be involved in care decisions, even if they're not your designated agent
• Your attorney, if you have one who handles your estate planning documents

Give copies rather than originals to most parties, and keep the original document in a secure but accessible location at home. If you make changes to your directive, notify everyone who has a copy and provide them with the updated version. Some states also offer advance directive registries where you can file your documents electronically, making them accessible to healthcare providers statewide.

FAQs about healthcare directives

What is a do not resuscitate (DNR) order?

A DNR or "do not resuscitate order" is a directive stating that a patient does not want to receive cardiopulmonary resuscitation (CPR). It's typically used as a supplement to other healthcare directives rather than a standalone document.

What is a POLST form?

A POLST form (Physician Orders for Life-Sustaining Treatment) adds detailed instructions to your advance directive, covering specific treatments such as artificial nutrition, hydration, medication, and intubation.

Can I change or cancel my advance healthcare directive?

Yes, you can change or cancel your advance healthcare directive at any time. To cancel a directive, you typically make a written statement revoking it, which must be signed and dated in the presence of witnesses. To make changes, you can create written statements that clearly express the modifications you want, or you can revoke the original directive and execute a new one following your state’'s formal requirements. Requirements vary by state, so check your state's specific procedures.

Michael H. Cohen, Esq., contributed to this article.