In 1976 Karen Ann Quinlan's parents went to court to demand that their daughter be removed from a ventilator. Her parents were successful. In 1983 Nancy Cruzan's parents fought to have her gastrostomy tube removed to stop the artificial nutrition and hydration which was keeping her alive. They were successful as well. Since then, the law has tried to keep up with advances in medical treatment. Unfortunately, medicine has failed to keep up with advances in the law. Several studies have shown that the overwhelming majority of physicians do not provide proper information about their patient's rights to demand or decline treatment. This shortcoming is particularly significant in the senior population. While advanced directives cannot compel sensitivity on the part of doctors, these documents can provide that a senior's treatment wishes be followed.

A health care advanced directive (HCAD) is the general term applied to any statement made by a competent individual of their preference for treatment decisions in the event that the person is rendered incompetent or loses the ability to make decisions. While a verbal instruction to a family member or health care provider may be called an advanced directive, the most widely recognized and accepted advanced directives are written documents. The Federal Patient Self-Determination Act (PSDA) defines an advanced directive as a written instruction, such as a Living Will or durable power of attorney for health care.

A is defined as a health care instruction or a person's written directive concerning health care decisions. Living Wills are documents that give instructions or state preferences that are intended as instructions to doctors about the care that an individual wants, or does not want, to prolong life. A Living Will does not specify that someone other than the patient gets to make treatment decisions, it says that whoever is providing the treatment is to follow these instructions. Most states have Living Will statutes, including South Carolina, North Carolina and Georgia.

In some states the statutes provide a non-mandatory Living Will form. Many of these limit the signer to expressing a preference that he or she does not want life-prolonging or life-sustaining treatment only in the circumstance where a terminal condition or a chronic vegetative state exits. Some statutes, like South Carolina, require that two physicians diagnose the terminal condition and/or the chronic vegetative state. Some of these statutes also require that the physician state that there is no reasonable expectation of recovery before the provisions of the Living Will apply. And even more restrictive in some statutes is a requirement for a waiting period for the physicians to make their determinations, during which the declined treatment is provided.

Living Wills are not the only advanced directives available. A more flexible tool exits called the durable health care power of attorney or power of attorney for health care (PAHC). A PAHC is defined as a document, which designates an agent to make health care decisions for the individual (principal) granting the power. A PAHC applies when the principal is incapacitated or unable to make an informed decision. All states have some statutory basis for appointing a proxy decision-maker; although, not all state statutes are the same. In South Carolina the statute that creates the right to PAHC includes a statutory form but also allows for a durable power of attorney created for financial purposes to include a health care provision.

The PAHC is an important and useful addition in the advanced directive arena. It allows the principal to have a spokesperson involved in the decision-making process. The agent may consult with treating physicians and make dynamic decisions based on the circumstances. And because of that, it is very important that the principal and the agent have an understanding and a trusting relationship. The principal should keep the agent informed about what he or she, the principal, expects and wants from the treatment.

The PAHC format does not require that the principal include specific instructions regarding treatment options. Although some state forms include paragraphs allowing for instructions. For example a principal may want to clarify her instructions regarding the use of artificial nutrition and hydration. In South Carolina the statutory form has a paragraph that allows the principal to designate that preference.

The PAHC clarifies who is legally authorized to make decisions. The principal may appoint anyone he or she trusts so long as the appointment is not contrary to state law. In many states the health care provider may not be an agent. A family member is generally the first and obvious choice for the agent. In most states the statute provides immunity to providers who, in good faith, follow the agent's instructions. In addition, most states provide immunity to agents who act in good faith in exercising their responsibility.

One important consideration in preparing and relying on advanced directives is whether the use of one will create a conflict in the use of the other. If a person has both a Living Will and a power of attorney for health care which one applies if there is a conflict. The rules are not consistent from state to state. Some states provide that Living Wills have priority and some states provide that PAHCs are prior. Other states provide that the last or later signed document had priority. In South Carolina the Living Will is given priority in situation where it applies.

Advanced directives are important and personal documents that have a major impact on the people who sign them and their families. A decision to use a Living Will or a power of attorney for health care should be made only after carefully considering all of the ramifications of each. A Living Will may limit you and your family's choices but it does provide specific instructions. A PAHC is flexible but this flexibility comes with a price. Your agent will be making life and a death decision for you and this is a big responsibility. An Elder Law attorney may assist you in coming to a decision about these important documents.

The information in this article was prepared as general and supplemental information and may not be applicable to the reader's particular legal needs or circumstances. It should not be relied upon as a substitute for legal or other professional services. For such services consult a competent professional advisor.

M. Robin Morris, R.N., L.L.C., Attorney At Law, 164 Waccamaw Medical Park Court, Conway, S.C. 29528; Tel. 843-347-7998. Member of National Academy of Elder Law Attorneys. ©1998