Advance Directives

Virginia has two different types of Advance Directives.  One is a Living Will.  Sometimes this is called a Natural Death Declaration.  The other is a Durable Power of Attorney for Health Care.  Sometimes this is called a Medical Power of Attorney.  There are important differences between these.

What is a Living Will?

A Living Will is a written advance directive.  It authorizes the prolonging, withholding or withdrawal of life-prolonging procedures if you have a terminal condition.

Who can sign a Living Will?

To sign a Living Will, you must be 18 or older and mentally competent.  A Living Will must be dated and signed in front of two persons not related by blood or marriage.  These two witnesses must have no interest in your estate. These two witnesses also must sign the Living Will.

            What should I do with my Living Will?

            You have to give your doctor a copy of your Living Will.  Your doctor has to make your Living Will a part of your medical records.

            When does a Living Will take effect?

            A Living Will is effective only after your doctor says in writing that you have a terminal condition.  If you are in a coma, incompetent, or otherwise mentally or physically incapable of communication, a second doctor also must say in writing that you have a terminal condition.

            What is a "terminal condition"?

            A "terminal condition" is a condition caused by injury, disease or illness from which, to a reasonable degree of medical probability, you cannot recover.  Your death must be imminent, or, you must be in a persistent vegetative state.  A persistent vegetative state means a loss of consciousness.  You must have no evidence of self-awareness or awareness of surroundings in a learned manner, other than reflex activity of muscles and nerves for low level conditioned response.

            What types of Living Wills are there?

            There are two versions of the Living Will.  One version tells your family and health care providers to respect your wishes if you are dying, to withhold or withdraw life-prolonging procedures which would serve only to artificially prolong the dying process.  This allows you to die naturally with only medicine and medical procedures to provide comfort care or reduce pain.

            The other version appoints an agent to make health care decisions, such as those listed above, if you have a terminal condition and are comatose, incompetent, or otherwise physically or mentally incapable of communication.

            Can I change a Living Will?

            As long as you can make medical decisions for yourself, your wishes always override the Living Will.

            What is a Durable Power of Attorney for Health Care?

            A Durable Power of Attorney for Health Care is a written advance directive.  It appoints an Agent to make health care decisions under the situations stated in the advance directive if you are determined to be incapable of making an informed decision.

Who can sign a Durable Power of Attorney for Health Care?

To sign a Durable Power of Attorney for Health Care, you must be 18 or older and mentally competent.  The Durable Power of Attorney for Health Care must be dated and signed in front of two persons not related by blood or marriage.  These two witnesses must have no interest in your estate.  These two witnesses also must sign the Durable Power of Attorney for Health Care.

            What should I do with my Durable Power of Attorney for Health Care?

            You have to give your doctor a copy of the Durable Power of Attorney for Health Care.  Your doctor has to make your Durable Power of Attorney for Health Care a part of your medical records.

            When does a Durable Power of Attorney for Health Care take effect?

            A Durable Power of Attorney for Health Care does not require your condition to be terminal before it can be effective.  Rather, a Durable Power of Attorney for Health Care is effective when you are incapable of making an informed decision.

             What is meant by "incapable of making an informed decision"?

            "Incapable of making an informed decision" means an impairment - because of mental illness, mental retardation, or any other mental or physical disorder - which prevents communication or impairs judgment.  Your doctor, and a second doctor or licensed clinical psychologist, must diagnose and say this in writing after a personal examination. 

You must be unable to make an informed decision about providing, withholding, or withdrawing a specific medical treatment or course of treatment.  This must be because you are unable to understand the nature, extent, or probable consequences of the proposed medical decision, or unable to make a rational evaluation of the risks and benefits of alternatives to that decision.

            How does my Agent make health care decisions for me?

            The Durable Power of Attorney for Health Care grants the Agent the same power and authority to make health care decisions as you would have, if you had the capacity to make them.  The authority is effective as long as you are incapable of making an informed decision.  The doctors must continue to say this in writing every 180 days while the medical treatment continues.

            In making health care decisions, the Agent must follow your desires and preferences as stated in the document or as otherwise known.  The Agent shall not authorize a course of treatment known, or which reasonably should be known, to be contrary to your religious beliefs or basic values, or contrary to the law.  

            Can I change a Durable Power of Attorney for Health Care?

As long as you are able to make medical decisions for yourself, your wishes always override the Durable Power of Attorney for Health Care.