Advance Directives - A Brief History Of Advance Directives

Advance directive is the general term that refers to a person's request (oral and/or written) concerning health care, should he or she become incompetent. There are two main documents in an advance directive: a living will and a durable power of attorney for health care. Many states have special forms or specific procedures for creating an advance directive. Some people think it is sufficient to tell a loved one or a physician what they desire. But the National Health Lawyers Association stresses that although courts have enforced oral instructions, and physicians often consider the information that family members offer about a patient's requests, the wishes of the terminally ill are more likely to be honored if they are written down. In 1967 the Euthanasia Society of America and attorney Luis Kutner, cofounder of Amnesty International, devised the first living will (later called an advance directive).

California was the first state to recognize the legality of living wills (1976) and the durable power of attorney for health care (1984). The California Natural Death Act of 1976 states that to preserve "dignity and privacy … any adult person may execute a directive directing the withholding or withdrawal of life-sustaining procedures in a terminal condition."

All fifty states and the District of Columbia passed laws recognizing the use of living wills and durable power of attorney for health care, although the provisions of these laws vary from state to state. As of January 2004, forty-six states and the District of Columbia had laws authorizing both living wills and the appointment of a health care proxy or agent. Alaska's law permits living wills only; even if a patient has a health care agent, that agent is not permitted to order the termination of life-sustaining treatment. While Massachusetts, Michigan, and New York laws only authorize the appointment of a health care agent, their laws do permit the inclusion of specific instructions about medical care at the end of life within the appointment of the agent. (See Figure 7.1.)