How to Know if Your Advance Directive is Still Valid


It may have been years since you filled out an advanced health care directive.  Many people prepare their advance directive and then put it away in a drawer with their other important papers.  Most never revisit those documents or give a thought to whether they are still valid or accurate with their wishes.

How to know if your advance directive is still valid. Advanced directives, once properly completed and given to your doctor, remain in effect in perpetuity unless

  • You create a new advance directive.
  • You provide a revocation to your doctor.
  • The laws and regulations in your State change.

Advance directives are a broad term used to describe several types of legal documents that can be used to make sure that your wishes about your health care, treatment, and end of life decisions are known to your health care provider and your family.  This article will give you a basic understanding of these documents and how they operate. They are essential to your advanced care planning.

Understanding Advance Health Care Directives

The laws that govern advance directives vary from state to state.  The terms used to refer to advance directives can also have some differences depending on the part of the country.  Notwithstanding those differences, advance directives are legally valid across the United States.  Although the terminology may differ, the concepts are the same. The most common types of advance directives are:

  • Living Wills
  • Durable Power of Attorney/Medical Power of Attorney
  • Physician Orders for Life-Sustaining Treatment (POLST)
  • Do Not Resuscitate Orders (DNR)
  • Organ and Tissue Donation

Each of these is different.  In preparing your advanced care plan, each should be considered as a potentially important part of making your wishes known.  Understanding how each of these types of advanced directive fits into an advanced care plan is vital.

The Living Will

What will happen should you become unable to make your own choices about your medical care?  A Living will can make sure that should you become unable to communicate that your end of life wishes are known by those who are caring for you.

The laws of your state will dictate when and how your living will becomes operative.  In almost all cases, two physicians must certify that you are unable to make your own medical decisions and you are terminally ill. A properly executed living will directs those in charge of your care about

  • Under what conditions any attempt to prolong your life should continue
  • Your wishes about the use of machines such as dialysis or ventilators to keep you alive
  • Do Not Resuscitate Orders
  • IV use to administer fluids
  • The use of comfort or palliative care
  • Tissue or organ donations
  • Instructions for particular circumstances, such as dementia

The rules and laws regarding living wills vary from state to state.  Your health care provider and other organizations in your state can provide advice and direction in preparing a living will.  It is not necessary in most states to have an attorney involved. In fact, a lot of states have free forms you can access and fill out yourself.

If you live in California, you can access a variety of estate planning documents FOR FREE at

Durable Power of Attorney

The living will speaks in general to your wishes and is meant to serve as your testament to how you want your treatment to happen should you become incapacitated or are diagnosed with an irreversible terminal condition.  The Durable Power of Attorney, or medical power of attorney as it is sometimes called, gives a person you trust the authority to make those decisions in your place.

In some states, like California, a living will and a durable power of attorney for health care are combined into a single document called an Advance Health Care Directive.

The person you designate in the Durable Power of Attorney is known as your proxy.  Your proxy then has the authority to make all decisions concerning your health care and treatment if you become unable to make those decisions yourself.

Choosing a proxy should be done carefully.  Your proxy should be

  1. Someone you trust
  2. Someone who knows you well and understands your wishes concerning your care
  3. Someone who makes decisions in the same way you do
  4. Someone who will be comfortable making the decision that may end your life.

Laws and regulations on durable powers of attorney vary widely from state to state.  Before executing any durable power of attorney, we suggest that you consult with your health care provider and with an attorney knowledgeable about advanced care planning in your state.  You should also include the person that you wish to designate as your proxy in the planning process.

Having your proxy involved from the very beginning of the advanced care planning process is critical. You need to be sure that your proxy is well aware of your wishes and understands the decisions you are making. Moreover, you need to be sure that he/she is comfortable in the role of proxy and can make tough decisions should the need arise.

Physician Orders for Life-Sustaining Treatment

Technically, a Physician Orders for Life-Sustaining Treatment (POLST) is not an advance directive.  It is a description or set of specific medical orders that you can make if you are seriously ill.  You must have your health care provider sign the form.

A POLST can address such items as

  • The use of advances live support equipment such as being placed on a respirator
  • Whether or not you want emergency personnel to use CPR to save your life.
  • If you want to be taken to a hospital in case of an emergency.

Something to remember is that emergency medical responders such as EMPT’s and Paramedics cannot use an advanced directive as instructions not to use CPR or to ventilate you in case of an emergency.  By law, these first responding emergency medical providers must use every effort they can to save your life.

However, a POLST is recognized by emergency medical responders and can prevent these responders from administering emergency measures to save your life.

POLST forms are not recognized in some states.  In other states, the rules are different on how and when a POLST can be used.  Talk to your doctor about using a POLST form as part of your treatment regimen.

Do Not Resuscitate Orders

A DNR gives instructions on how medical staff will respond if you suffer a cardiac arrest.  In most states, a DNR order in your medical file will stop your medical team or the staff responsible for your care from performing CPR (cardiopulmonary Resuscitation) or the use of an AED (Automated External Defibrillator) to restart your heart.

In some states, this can be extended to include the use of ventilating equipment to help you breathe.  Check with your health care team about what you can and cannot include in a DNR. Importantly, you should be clear about what you want and do not want your DNR to mean.

What happens outside the hospital with a DNR?

Outside the confines of the hospital, a DNR becomes more complicated.  In some states, emergency medical personnel have no choice.  They are required to do everything they can to prolong your life.  Some states do make provisions for non-hospital DNR’s.  You must consult with your medical team or an attorney about how your state handles non-hospital DNR’s

The Duration and Validity of Advanced Directives

In virtually every state, advanced care directives continue without change or expiration until they are either revoked or superseded by a new advanced directive.  Therefore, it is so important to revisit any advanced directives you may have executed.  Conditions change, feelings and wishes change, and circumstances change.  You should keep your advanced care planning documents current.

If you move to another state, you should prepare new advanced directives that conform to the rules and regulations of your new state of residence.  Some states will honor an advanced directive from another state, but it is wiser to err on the side of caution.  Consult with your new health care team about your wishes before preparing a new advanced directive.

It is All About What You Want

The purpose of advance care planning and the use of advance directives is to make sure that your desires and wishes are well known and understood by the people who will be responsible for your care if you become unable to participate in the decision-making process. Advanced care directives can add to your peace of mind by giving you the knowledge that your wishes and desires will be carried out, even if you are unable to make them known at the time.

James Long, JD

James earned his Juris Doctorate in 2010 and was later appointed to serve as an Expert for the Vatican at the United Nations. James is the former Managing Editor of the University of St. Thomas Journal of Law and Public Policy, and an Associate Editor of the St. Thomas Law Journal. James is currently a business lawyer, litigator, and estate planner with nine years' experience helping families and businesses succeed.

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