Advance Medical Directives
and Health Care Proxy)
Medical Author: Maude B. Hecht, RN
William C. Shiel, Jr. MD, FACP, FACR
Advance Medical Directives encompass a Living Will, Power of
Attorney, and Health Care Proxy. These matters may well appear to be
unusual medical topics. In reality, they are topics that pertain
directly to medical treatment. They concern our individual
preferences about our own health care that each one of us may wish to
express and the selection of someone to make decisions, if need be,
on our behalf.
Advance directives: This is a term which refers to
treatment preferences and the designation of a surrogate decision-
maker in the event that a person should become unable to make medical
decisions on her or his own behalf.
Advance directives generally fall into three categories: living
will, power of attorney, and health care proxy.
Living Will: This is a written document that specifies
what types of medical treatment are desired should the individual
become incapacitated. A living will can be general or very
specific. The most common statement in a living will is to the
- If I suffer an incurable, irreversible illness, disease, or
condition and my attending physician determines that my condition is
terminal, I direct that life-sustaining measures that would serve
only to prolong my dying be withheld or discontinued.
More specific living wills may include information regarding an
individual's desire for such services such as analgesia (pain
relief), antibiotics, hydration, feeding, CPR (cardiopulmonary
resuscitation) and the use of life-support equipment including
Health Care Proxy: This is a legal document in which an
individual designates another person to make health care decisions if
he or she is rendered incapable of making their wishes known. The
health care proxy has, in essence, the same rights to request or
refuse treatment that the individual would have if capable of making
and communicating decisions.
Durable Power of Attorney: Through this type of advance
directive, an individual executes legal documents which provide the
power of attorney to others in the case of an incapacitating medical
condition. The durable power of attorney allows an individual to
make bank transactions, sign Social Security checks, apply for
disability, or simply write checks to pay the utility bill while an
individual is medically incapacitated.
HISTORY OF ADVANCE DIRECTIVES
Advance directives began to be developed in the United States in
the late 1960's.
The First Living Wills: In 1967, an attorney named Luis
Kutner suggested the first living will. Kutner's goal was to
facilitate "the rights of dying people to control decisions about
their own medical care."
In 1968, the first living will legislation was presented to a
state legislature. Walter F. Sackett, a doctor elected to the
Florida legislature, introduced a bill that would allow patients to
make decisions regarding the future use of life-sustaining
equipment. The bill failed to pass in 1968. Sackett reintroduced
the bill in 1973 and it was again defeated.
While Dr. Sackett was introducing living will legislation in
Florida, Barry Keene was presenting similar bills in the California
legislature. Keene's interest in living wills was based on personal
experience. In 1972, Keene's mother-in-law was unable to limit
medical treatment for a terminal illness even after having signed a
power of attorney. Keene was elected to the California State senate
in 1974. The living will legislation he designed was defeated that
same year. Keene reintroduced the bill in 1976 and in September of
that year California became the first state in the nation to legally
sanction living wills.
The States: Within a year, forty-three states had
considered living will legislation and seven states had passed bills.
Advance directive legislation has subsequently progressed on a state-
by-state basis. By 1992, all fifty states, as well as the District
of Columbia, had passed legislation to legalize some form of advance
The first court decision to validate advance directives was at the
state level. The decision was handed down by the New Jersey Supreme
Court in 1976. In Case 70 N.J. 10, 355 A 2nd 647, Chief Justice
Robert Hughes upheld the following judicial principles:
- If patients are mentally unable to make treatment decisions,
someone else may exercise their right for them.
- Decisions that can lead to the death of a mentally incompetent
patient are better made not by courts but by families, with the input
of their doctors.
- Decisions about end-of-life care should take into consideration
both the invasiveness of the treatment involved and the patient's
likelihood of recovery.
- Patients have the right to refuse treatment even if this refusal
might lead to death.
The case in which Judge Hughes ruled was the request by Joe
Quinlan to make legally binding health care decisions for his
daughter, Karen Ann Quinlan. As a result of the case, Karen Ann
Quinlan was gradually weaned from mechanical ventilation.
The Federal Government: The U.S. federal government has
evidenced its interest in advance directives through two of its
bodies, the Congress and the Supreme Court.
The U.S. House of Representatives in 1991 enacted the Patient Self-
Determination Act. The Act stipulates that all hospitals receiving
Medicaid or Medicare reimbursement must ascertain whether patients
have or wish to have advance directives. The Patient Self-
Determination Act does not create or legalize advance directives;
rather it validates their existence in each of the states.
It was not until 1990 that the United States Supreme Court agreed
to hear a case on the legality of advance directives. The Supreme
Court had been reticent to hear cases on advance directives,
reflecting to some degree the belief that advance directives are
determined at the state rather than federal level. In 1990, the
Court heard Cruzan vs Director. The case, similar to that of Karen
Ann Quinlan, involved the desire to discontinue the percutaneous
gastrostomy feedings of Nancy Cruzan. The United States Supreme
Court decided in favor of the individual right to refuse treatment,
even life-sustaining treatment. The Supreme Court refused to hand
down a specific decision on medical treatment in the case. Following
the opinion of the Supreme Court, the case was referred back to the
Missouri Supreme Court. The Missouri Supreme Court heard testimony
of a verbal advance directive that was deemed to be sufficient
evidence to support the refusal of medical treatment.