An advance directive is a combination of a medical power of attorney and a living will that allows a person to both choose their end-of-life treatment options and nominate an agent to make healthcare decisions on their behalf. An advance directive also allows an individual to make organ donation selections and to choose if the agent should be a conservator. Advance directives are provided as a free form by most states.
Signing requirements – Dependent on the state – commonly requires a notarization, witnesses, or both.
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
An advance directive allows a patient to make as many medical decisions for themselves as possible in the event they cannot speak for themselves (“incapacitated”). This is common before someone undergoes surgery or with signs of the onset of dementia or other mind-altering conditions.
In most states, there are five (5) parts to an advance directive:
- Part 1: Living Will (Health Care Directive)
- Part 2: Medical Power of Attorney
- Part 3: Organ Donation
- Part 4: Primary Care Physician
- Part 5: Signing Requirements
The five (5) steps below instruct how any adult can obtain an advance directive in their state.
Any person residing in the United States is qualified to create an advance directive, except those that are:
- Under eighteen (18) years of age;
- Incarcerated (in jail); and
- Outside of the country and not able to return.
Conservatorship / Guardianship – If a person is already incapacitated a spouse or family member may need to seek an attorney an apply for conservatorship or guardianship depending on local laws. This is can be filed immediately to make medical and financial decisions for someone else.
For the living will section, the principal will need to decide whether or not to withhold end-of-life treatment options such as breathing assistance, artificial nutrition and hydration, and prolonged relief from pain.
In addition, the principal will be able to make decisions about where their organs will go after their death (i.e. donation options) along with selecting their preferred primary care physician.
For the medical power of attorney section, the principal will need to decide who to select as their agent (also known as a “proxy” or “attorney-in-fact”). In most cases, the agent selected is the spouse, family member, or close friend.
An advance directive does not usually allow co-agents but does allow alternate agents in the event the first (1st) selected agent is unable to serve.
An advance directive is not complete until it has been executed in accordance with the Signing Requirements of the principal’s state of residence. This often involves the principal and their agents signing the document in the presence of two (2) witnesses, a notary public, or both.
In the case of using witnesses, most states require that a witness cannot be:
- A family member;
- A beneficiary of the principal’s Last Will and Testament;
- A health care professional; and
- A person under the age of 18.
After the advance directive has been properly executed, it should be distributed to all health care agencies of the principal including their primary care physician. Most importantly, the agents of the principal should all receive copies so they can effectively communicate the principal’s wishes in the unfortunate circumstance they can no longer speak for themselves.
Not required but some states have a registry where the principal can record the advance directive to prove its existence. There are national registries that may be used such as the U.S. Living Will Registry and DocuBank that help to ensure the form is safely stored.
Filing an advance directive in an official registry helps to safeguard against any family member or third (3rd) party disagreeing with the principal’s intentions as outlined in the form.
The Uniform Health-Care Decisions Act is a federally recognized law that has been adopted in seven (7) states (Alaska, Delaware, Hawaii, Maine, Mississippi, New Mexico, and Wyoming).
All Advance Directives must be signed by the principal/declarant in addition to the requirements listed below.
|Alabama||2+ Witnesses||§ 22-8A-4(c)(4)|
|Alaska||2 Witnesses OR Notary||§ 13.52.010(b)|
|Arizona||1 Witness OR Notary||§ 36-3282(5)|
|Arkansas||2 Witnesses||§ 20-17-202(a)|
|California||2 Witnesses OR Notary||§ 4673(3)|
|Colorado||2 Witnesses||§ 15-18-106(1)|
|Connecticut||2 Witnesses||§ 19a-575|
|Delaware||2+ Witnesses||§ 2503(b)(1)(d)|
|Florida||2 Witnesses||§ 765.202(1)|
|Georgia||2 Witnesses||§ 31-32-5(c)|
|Hawaii||2 Witnesses OR Notary||§ 327E-3|
|Idaho||2 Witnesses||§ 39-4501|
|Illinois||2 Witnesses||755 ILCS 35/3|
|Indiana||2 Witnesses||§ 16-36-4-8(b)(5)|
|Iowa||2 Witnesses||§ 144A.3(2)(a)|
|Kansas||2+ Witnesses||§ 65-28,103(a)(4)(A)|
|Kentucky||2 Witnesses OR Notary||§ 311.625|
|Louisiana||2 Witnesses||RS 40:1151.4(A)(2)(b)|
|Maine||2 Witnesses||§ 5-803(2)|
|Maryland||2 Witnesses||§ 5–602(c)(1)|
|Minnesota||2 Witnesses OR Notary||§ 145B.03(2)(a)|
|Mississippi||2 Witnesses OR Notary||§ 41-41-205(2)(a)|
|Missouri||2 Witnesses||§ 459.015(4)|
|Montana||2 Witnesses||§ 50-9-103(1)|
|Nebraska||2 Witnesses OR Notary||§ 20-404(1)|
|Nevada||2 Witnesses||NRS 449A.618|
|New Hampshire||2 Witnesses OR Notary||§ 137-J:14|
|New Jersey||2 Witnesses OR Notary||§ 26:2H-56|
|New Mexico||Principal’s Signature||§ 24-7A-2(B)|
|New York||N/A||No statute|
|North Carolina||2 Witnesses||§ 90-321(c)(3)|
|North Dakota||2 Witnesses OR Notary||23-06.5-05(2)|
|Ohio||2 Witnesses OR Notary||2107.03|
|Oklahoma||2 Witnesses||§ 63 3101.4(A)|
|Oregon||2 Witnesses OR Notary||127.515(2)|
|Pennsylvania||2 Witnesses||§ 54-5442(b)(2)|
|Rhode Island||2 Witnesses||§ 23-4.11-3(a)|
|South Carolina||2 Witnesses||§ 44-77-40(2)|
|South Dakota||2 Witnesses||§ 34-12D-2|
|Tennessee||2 Witnesses OR Notary||§ 32-11-104(a)|
|Texas||2 Witnesses||§ 166.032(b)|
|Utah||1 Witness||§ 75-2a-107(c)|
|Vermont||2+ Witnesses||§ 9703(b)|
|Virginia||2 Witnesses||§ 54.1-2983|
|Washington||2 Witnesses OR Notary||RCW 70.122.030(1)|
|West Virginia||2+ Witnesses||§ 16-30-4(a)(4)|
|Wisconsin||2 Witnesses||§ 154.03(1)|
|Wyoming||2+ Witnesses OR Notary||§ 35-22-403|
Frequently Asked Questions (FAQ)
Who Can Get an Advance Directive?
Any individual 18 years or older may create an advance directive. For individuals under 18 years of age, their parents or legal guardians are automatically nominated as health care agents. It’s recommended to obtain the power of attorney form in the state the principal resides.
What are the Signing Requirements?
In most cases, a nurse, doctor, parent, and beneficiaries in a patient’s last will are not allowed to be witnesses in an advance directive.
Where to Register an Advance Directive?
An advance directive may be registered either at the local or state government level, or with a 3rd party. Most state registrations are free or are a small fee. For 3rd party registrations, an individual may use the following sites (3):
- MedicalAlert.com ($74.99/yr) – A highly recommend 501(c)(3) non-profit organization that has agents available 24/7.
- USLivingWillRegistry.com – ($59.99 for 5 years)
- ALWR.com ($15/yr)
- DocuBank.com ($55 for 1 year, $175 for 5 years)
What is Incapacitation?
Incapacity defined by Section 102 (Page 7) of the Uniform Power of Attorney Act (UPOAA):
“Incapacity” means inability of an individual to manage property or business affairs because the individual: (A) has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or (B) is: (i) missing; 8 (ii) detained, including incarcerated in a penal system; or (iii) outside the United States and unable to return.
Can a Family Override an Advance Directive?
A family member cannot override the terms outlined in a living will unless specific instructions were given to the agent that they can do so.
Advance Directive vs Living Will vs Medical Power of Attorney
An advance directive is a combination of a living will and a medical power of attorney. Due to the close relation of the forms, most states have combined them into what is known as an advance directive.
[Make table that has columns of “Form”, “Health Care Agent”, “End of Life Treatment Options”, “Organ Donation”]
Advance Directive vs Do Not Resuscitate (DNR)
An advance directive represents a patient’s medical decisions in case they cannot speak for themselves. A do not resuscitate (DNR) informs all medical professionals NOT to perform any life-saving procedures on a patient.
Sample – Advance Directive
How to Write an Advance Directive
This is a general guide and the Advance Directive in Your State should always be used.
- Red – Required
- Green – Optional
Section 1 – Living Will
Step 1 – Identifying the Principal (You)
On the first (1st) page of the document, the principal will need to enter:
- The date in which they are completing the document (not necessarily the date they are signing);
- Their full name;
- Street address (Apt # included, if applicable);
- State; and
- The last four (4) digits of the principal’s social security number.
Step 2 – Life Support
Initial AND check any of the five (5) options presented. The 5th line can be used for specifying a type of quality of life not specified on the form. The section is optional, meaning the principal is not required to select an option.
Step 3 – Intravenous Food + Water
If the principal would like to kept alive by means of intravenous food and/or water (through a tube/needle), they should initial AND check the first option. If they would not like to be treated artificially, they should choose the second option. Only ONE (1) of the two (2) options listed should be selected.
Step 4 – Life-Sustaining Treatment
In the event of a medical emergency in which a medical professional states intervention is necessary to keep the principal alive, they will commonly involve one (1) or all of the treatments listed in this section. The principal will need to check AND initial any of the five (5) means of treatment that they DO NOT want to receive.
Step 5 – End-of-Life Wishes
If the principal has any end-of-life requests, these can be included on the lines provided. An example could be “I would like to be brought home from the hospital to live out my final moments”.
If the principal runs out of space, they can attach a supplemental form, title it “Appendix A” (for example), and write the name of the additional document on one of the lines in section C.
Section 2 – Medical Power of Attorney
Step 6 – Agent Assignment
The agent is the individual that will represent the principal, informing doctors of the principal’s wishes and seeing that they are taken care of in the manner that was set forth in the “Living Will” section.
The principal will need to enter:
- Their name (first + last);
- The agent’s name (first + last);
- If the principal permits the agent to admit them to inpatient psychiatric care (if ordered by a physician), the first line should be initialed. If the principal also wishes to make the form NOT revocable upon their incapacitation (unable to communicate with those around them), the second line should be initiated. None, one (1) or both (2) options can be initialed if the principal so chooses.
- The address of the primary agent;
- The primary agent’s phone number (#);
- If the principal wishes to designate a successor (secondary) agent, they will need to enter their full name on the provided line;
- The successor agent’s address; and
- Phone number (#).
Step 7 – Principal’s Signature
The last step the principal takes is to sign the form. This may need to be done in the presence of witness(es) and/or a Notary Public depending on the state the principal resides in. By signing their name, they are stating they agree-with and understand all information contained in the form. The following information will need to be entered:
- The date (day, month, and year) in which the principal is signing their name;
- The principal’s signature (by hand, OR via eSign);
- Their full printed name;
- Their address (same as in section 1); and
- The principal’s phone number, including the area code.
Section 3 – Witnesses and/or Notarization
Step 8 – Witness Signature(s)
If required by the state, the principal may need to have one (1) or more witness(es) sign the document after witnessing the principal sign their name. The witnesses CAN sign digitally via eSign so long they are in the same physical location as the principal.
Step 9 – Notarization
Some states allow the principal to notarize their signature instead of having witnesses sign the form. Alternatively, the principal may decide to have their Advance Directive notarized IN ADDITION to witnesses to add further proof as to the validity of the document. The principal can have the document notarized online via Notarize.com, or by visiting a post office, library, government office, or similar building that has notary services available.
Do Not Resuscitate (DNR) – Instructs medical professionals to not provide medical treatment to a patient and for them to die a natural death.
Durable Power of Attorney – Allows another person to make financial decisions on their behalf.
HIPAA Release Form – Used to transfer medical records from one office to another.
Living Will – Outlines life-ending treatment options such as withholding food and breathing assistance in the case of an untreatable illness.
Medical Power of Attorney – Select an agent to make medical decisions if a patient cannot speak for themselves.