Learn more about advance directives below. You are encouraged to discuss the directives with your physician and your loved ones. Any legal questions you may have about the use and effect of these directives may be answered by an attorney.
What are advance directives?
The term 'advance directive' refers to your oral and written instructions about your future medical care in the event you are unable to express your medical wishes. There are two types of advance directives: a health care directive (also known as a living will) and a durable power of attorney for health care.
Health care directive (living will)
If you had a terminal condition, would you want your dying artificially prolonged? The health care directive is a legal document allowing you to answer this question in writing. This directive is used only if you have a terminal condition as certified by your physician, where life-sustaining treatment would only artificially prolong the process of dying; or you are certified by two physicians to be in an irreversible coma or other permanent unconscious condition and there is no reasonable hope of recovery. In either situation, the directive allows treatment to be withheld or withdrawn so that you may die naturally.
You may also direct whether you would want artificially provided nutrition (food) and hydration (water) stopped under these circumstances. Also in the directive, you can give further instructions regarding your care. The health care directive must be signed by you and two witnesses who are not related to you and will not inherit anything from you. You can change or revoke this directive at any time.
The health care directive allows people who clearly do not want their lives artificially prolonged under the above conditions to make their wishes known.
To help you understand your treatment options when faced with a terminal or serious illness, visit the new Honoring Choices Pacific Northwest website.
Durable power of attorney for health care
Who would you want making your health care decisions if you were unable? The durable power of attorney for health care is a legal document allowing you to name a person as your health care agent—someone who is authorized to consent to, stop or refuse most medical treatment for you if a physician determines you cannot make these decisions yourself. The person you choose should be a trusted family member or friend with whom you have discussed your values and medical treatment choices.
Who can make decisions for me if I’m unable?
If you lose the ability to communicate and make decisions, Washington state law enables the following people, in order of priority, to make health care decisions for you, including withdrawing or withholding care:
- A guardian with health care decision-making authority, if one has been appointed.
- The person named in the durable power of attorney with health care decision-making authority.
- Your spouse or state-registered domestic partner.
- Your adult children.
- Your parents.
- Your adult brothers and sisters.
When there is more than one person, such as children, parents, or brothers and sisters, all must agree on the health care decision.
Making your wishes known in an advance directive will provide your doctor and your agent the clear guidance necessary to respect your wishes. The medical decisions made by your health care agent (as named in your durable power of attorney for health care) is as meaningful and valid as your own. The wishes of other family members should not override your own clearly expressed choices or those made by your agent on your behalf.
Do I need an advance directive?
Advance directives are the best possible assurance that decisions regarding your future medical care will reflect your own wishes, in the event that you are unable to voice these wishes. For this reason, every person aged 18 or over should prepare a directive.
Do I need both a health care directive (living will) and a durable power of attorney for health care?
Yes. Having both a living will and a durable power of attorney for health care will provide the best protection for your treatment wishes.
A durable power of attorney will allow for some flexibility regarding treatment decisions, since the agent that you choose to represent your wishes will be able to respond to unexpected changes in your condition and base decisions not just on your written wishes, but also on their familiarity with you and your feelings regarding your care.
A living will is necessary to provide instruction in case your agent is unable to serve, to provide evidence that the agent is acting in good faith in case the agent's decisions are challenged, or to serve as the primary record of your wishes in case you are unable to appoint a health care agent.
Are advance directives legal?
Yes. There are federal and state laws that govern the use of advance directives. All 50 states and the District of Columbia have laws recognizing the use of advance directives. If you travel, you may want to take copies of your documents with you, as other states may honor these forms.
Will advance directives be recognized in emergencies?
No. During most emergencies, there is not enough time for emergency service personnel to consult the patient's advance directive. Once the patient is under the direct care of a physician, there will be time for the advance directive to be evaluated and/or the health care agent to be consulted.
For individuals with serious health conditions, there is a form in Washington state that can help represent your wishes in emergency medical situations called the Physician Orders for Life-Sustaining Treatment form. For more information on POLST, please ask your physician, or visit our POLST page.
What to do with these forms
Signed copies of your completed directives should be included in your medical record, given to any person to whom you give your durable power of attorney—including any alternate people you may have named—and to your personal attorney. Originals should be in a safe but accessible place (not a safe deposit box) or given to someone you trust and who can obtain them in an emergency.
Discuss your wishes
It is essential that you have honest and open discussions with your appointed health care agent, doctor(s), clergy, and family and friends about your wishes concerning medical treatment. Starting a conversation about end-of-life planning can be tough, but taking that step can put you at ease for whatever may lie ahead. To assist you in encouraging your patients to plan for the future, WSMA's new Honoring Choices Pacific Northwest website has information that will help you begin these conversations with your family and health care professionals.
Discuss your wishes with them often, especially if your medical condition changes.
Can I change/revoke my directive?
You can always revoke one or both of your Washington state directives. If you choose to revoke your documents, make sure you notify your health care agent, alternate agents, your family and your doctor(s). If you wish to make changes to the directives, you should complete new documents.
Changes to the Washington state durable power of attorney for health care form in 2017
Physicians and others who provide direct patient care should take note of new requirements taking effect Jan. 1 that affect the Washington state durable power of attorney for health care form.
Senate Bill 5635, passed by the Legislature in 2016, requires all powers of attorney—including those for health care—to be either witnessed by two individuals or notarized, beginning in 2017 (prior to the bill’s enactment, a power of attorney for health care could be signed by a patient without witnesses or a notary public). Note that these requirements for witnesses are different from the requirements for witnesses in the health care directive form. All powers of attorney, including those for health care, executed before Jan. 1 will remain valid.
A power of attorney is a document granting to another individual the authority to act on your behalf. A power of attorney for health care allows that individual (the “attorney in fact”) to make decisions regarding your health care on your behalf.
The power of attorney becomes “durable” if it is written to remain or become effective if you become incapacitated and are not able to make health care decisions on your own. In addition to requiring witnessing or notarization, the new law also requires specific wording* that clearly indicates that the power of attorney is intended to be durable.
The new law is based on the Uniform Power of Attorney Act drafted by the Uniform Law Commission, the national organization which promotes uniformity of certain state laws. While the uniform act excludes health care powers of attorney, our state legislators chose to include health care in SB 5635. The Uniform Law Commission establishes requirements for health care powers of attorney separately in its Uniform Health-Care Decision Act.
As a result, powers of attorney for health care now must meet the same requirements as those for powers of attorney that authorize decision-making in matters involving property and finances.
The biggest change on the ground will be that a power of attorney for health care will have to be witnessed by two individuals or notarized by a notary public. The law states that the witnesses:
- Must be competent (meaning the witnesses have the mental capacity to understand what they’re being asked to do and the consequences of their actions).
- Must not be home care providers for the principal or care providers at an adult family home or long-term care facility if the patient lives there.
- Must not be related to the principle or the agent by blood, marriage or state-registered domestic partnership.
However, SB 5635 appears to allow physicians and staff to serve as witnesses if they work at a non-residential facility, such as a medical clinic or hospital.
The new legislation provides added security to help prevent fraud or duress in completion of the power of attorney document, which can grant peace of mind for all concerned. However, the WSMA recognizes that the new requirements place an additional burden on patients completing the document and will monitor the implementation of the new law.
*The new Washington law requires specific language in order to make the power of attorney for health care “durable.” A durable power of attorney for health care document must include words substantially similar to “This power of attorney shall not be affected by the disability of the person signing the document,” or “This power of attorney shall become effective upon the disability of the person signing this document,” or similar words indicating the intent of the patient to have the document become or remain effective upon the patient’s incapacity.
For further information
You are encouraged to discuss the directives with your physician. Any legal questions you may have about the use and effect of these directives may be answered by an attorney.