A Guide to Advance Directives in Virginia

An Advance Directive (AD) is a document that allows you to give directions about your health care instructions and preferences for a time in the future when you may be unable to make informed decisions about your care because of injury or illness.

YOUR RIGHT TO DECIDE

Adults (18 or older) who are medically competent generally have the right to decide for themselves whether or not they want medical treatment. Your doctor should discuss your situation with you or obtain your consent before giving you care. You have the right to refuse treatment or to choose among different kinds of treatment. You may leave the hospital or seek treatment from other health care providers. Making a responsible choice does not always mean you accept your doctor’s advice, but it does not mean you understand the consequences of your choice. This right to decide – to say “yes” or “no” to treatment – includes consenting to or refusing treatment needed to sustain life.

WHO WILL MAKE MEDICAL DECISIONS FOR YOU IF YOU BECOME DISABLED?

Tragically, an accident or illness can take away your ability to make health care decisions. But, decisions still have to be made. If you cannot make decisions, someone else will – in some situations after the burden and delay of court proceedings. Although you are not required to do so, you should consider taking steps now to control these decisions so that they will reflect your wishes.

REQUIREMENTS OF AN ADVANCE DIRECTIVE IN VIRGINIA

In Virginia, there are two requirements that need to be met in order for an AD to be valid:
1. Your signature.
2. The signatures of two adult witnesses who see you sign the Advance Directive.

Your Advance Directive does not have to be:

  • On a specific Advance Directive form
  • Notarized
  • Prepared by a lawyer

You can complete an AD by yourself (though working with a health care provider or lawyer may be helpful). Photocopies of your Advance Directive are valid and can be used just the same as the original
copy.

Requirements of an Advance Directive in other states

Many states will recognize an Advance Directive from another state. But some states require that an Advance Directive meet their requirements.

If you spend a lot of time in another state, you should check the laws of that state so you can know if your Virginia Advance Directive will be followed there.

For your convenience, we have available forms provided by the Virginia Department of Health for creating written advanced directives. You do not need a lawyer’s assistance to execute this form effectively, but if there is anything that you do not understand, you should ask your physician, nurse, or lawyer to explain it to you. Also, you should talk to your health care provider about the medical issues. Let those who will be caring for you know what you have decided.

With an Advance Directive, you have three different ways that you can take control of your future health care:
1. You can choose someone to carry out your wishes and/or make health care decisions for you. This person is called your agent. ​
2. You can write down specific instructions or preferences about the health care you would like, and the health care you refuse.
3. You can do BOTH: you can choose a decision-maker AND write specific instructions about your future health care. If you do both, your agent will be required to follow the instructions you have written in your Advance Directive.

An Advance Directive can be used to cover any or all of these types of health care:
1. Medical Health Care
2. Mental Health Care
3. End-of-life Care

HOW AN ADVANCE DIRECTIVE HELPS

You are the expert on your health care. Nobody knows your health history, your support system, what works for you, and what doesn’t work for you, better than you. An Advance Directive helps you to make sure that you are able to have some control over your future treatment, even if you are unable to make informed decisions for yourself at that time.

An AD allows you to choose who will be making decisions for you
If there comes a time when you are in the hospital and are unable to make decisions for yourself, whether because of injury or illness, your doctor will look to find someone to make treatment decisions for you. Virginia law has a list of people in a specific order that doctors must go through until they find someone who can make these important decisions:

1. Court-appointed guardian (if you have one)
2. Spouse
3. Adult child(ren) (majority rules)
4. Parent
5. Adult siblings (majority rules)
6. Other relatives, in order of blood relationship
7. An interested adult, or “next friend”

Some people may feel that the order of the people on this list works well for them, while others do not want these people making decisions for them. By choosing someone to make decisions for you in your Advance Directive, your doctor will automatically ask that person to make decisions for you before asking anyone else.

Some situations that may lead people to want to appoint an agent in their AD, instead of having the automatic list above applied to them, include:

  • ​You are separated from your spouse, but are not divorced – under Virginia law, your spouse would be one of the first people that your doctor would contact to make decisions for you.
  • You have an even number of children who have different beliefs about the treatment you should get – under Virginia law, your children get equal power over your treatment decisions, which means that that their disagreement about your treatment could cause substantial family conflict and slow down treatment.
  • You may not want some of the people on the state list to know about your injury or illness.
  • You know that one of the people in that list has different beliefs about your treatment, and he/she may not want to authorize the treatment that he/she knows that you want.

Appointing an agent in your Advance Directive will ensure that the person you want making these important decisions about your care will be the person the doctors contact first.

An AD allows you to tell your physician and loved ones what treatment you want

In an Advance Directive, you can write down specific instructions or preferences about the health care you would like, and the health care you refuse. Without having those things written down, your doctor or loved ones may have a difficult time deciding what you would want during a time that you cannot make those decisions. Also, for example, your doctor or loved ones may not know about the side-effects that you have experienced on particular medication or about the bad experience you had at a particular treatment facility – by writing these things in your Advance Directive, you can help the people involved in your treatment to make the best decisions for you.

An AD may allow you to bypass the TDO/involuntary commitment process if you need to be hospitalized

In particular situations, an Advance Directive may be able to help someone get admitted to a psychiatric hospital without going through the Temporary Detention Order/involuntary commitment process. In Virginia, a person who is incapable of making informed decisions about their care can only be admitted to a psychiatric hospital for treatment through the TDO process unless he/she has authorized his/her agent in the Advance Directive to consent for him/her. Because the TDO/involuntary commitment process can be emotionally distressing, people may choose to have an AD to help them get admitted to a hospital without involving the court system.

Your AD is turned on only when you need it

Doctors and loved ones will only use your Advance Directive to make decisions about your health care if all three of these things happen first:
1. Your attending physician evaluates you and finds that you are incapacitated.
2. A second physician, who is not currently treating you, agrees that you are incapacitated.
3. A doctor must tell you that he/she has found that you are incapacitated and put that finding in writing in your record.

There is one exception to this:
A second physician’s opinion is not needed if you are in a coma.

What does it mean to be incapacitated?

​An individual is found to be incapacitated if he/she is unable to make informed decisions about his/her care. An individual may be incapable of making informed decisions about his/her care for a number of reasons, including:

  • Physical injury (e.g., person is in coma after a car accident)
  • Mental illness (e.g., person is experiencing a mental health crisis)
  • Decline in brain functioning (e.g., dementia)

According to Virginia law, an individual cannot be found incapacitated just because they have a diagnosis of mental illness. His/her mental illness must be at a level that leaves the person unable to make informed decisions about his/her care

Your AD is only turned for as long as you need it

Once any one physician evaluates you and agrees that you are now able to make informed decisions about your care, then the Advance Directive is turned off. At this point, you can start making your own decisions once again.

What is an agent?

An agent is someone you choose to make health care decisions for you if you are incapacitated. Your agent makes decisions based on what you want for you as long as you are incapable of making an informed decision about health care. When a physician finds that you are able to make these decisions again, decision making power is returned to you.

Sometimes people ask about picking two people to act as “co-agents.” You can pick more than one person to be your agent, but think about how that could cause problems. For example, if you have two agents and they have different opinions on your treatment, whose orders should a doctor follow? One way to address this problem is by picking a primary and back-up agent (called a “successor” agent). Your back-up agent would only be asked to make decisions for you if your primary agent is unavailable, unable, or unwilling to make decisions for you.

Good qualities of an agent:

  • Someone who is 18 or older
  • Someone you trust
  • Someone who knows you well, including your values and preferences for health care treatment
  • Someone who can be easily reached in an emergency

WRITTEN INSTRUCTIONS

In your Advance Directive, you can write down your instructions and preferences about the health care that you want and do not want. If you are incapacitated and need care, then your doctors and agent will have your input on what you authorize and refuse. You do not have to give written directions if you have appointed an agent, but directions are helpful for both your agent and doctors.

There are 3 “levels” of directions that can be included in your AD.

1. INFORMATION – This includes health conditions, medication history, and any other details that may be useful to your doctor when he/she is treating you. With Information, you are not requesting or refusing anything – you are simply telling your doctors and agent a little more about you as a person and patient.
2. PREFERENCES – You can suggest certain medications, facilities, and treatments that you would like to be used. Writing out your Preferences will help your doctors and agent to determine what works best for you, so that your recovery can be as quick as possible. Preferences are not legally binding; factors like time and availability may mean that your doctors will try treatments that are not “preferred.” It is helpful to include explanations of why you prefer certain treatments, medications, or facilities; doing this will help your doctors to better understand what care you need in order to recover. Explaining your Preferences also makes it more likely that doctors will follow them.
3. INSTRUCTIONS – Instructions are legally binding parts of your AD that your agent cannot override. Your doctor is only able to override your Instructions in a very limited number of emergency situations. Instructions can include: medication or treatment refusals, directions for visitation, directions for end-of-life care, and directions for anatomical gifts.

Your doctors and agent have to follow your Instructions in most cases

  • Your agent cannot authorize or refuse treatment that conflicts with the Instructions that you have written in your AD.
  • Your health care providers cannot treat you in a way that conflicts with your Instructions UNLESS there is a separate legal authority to treat you differently.

For example, you may write in your Instructions that you refuse to consent to inpatient psychiatric treatment. Refusing to consent does not prevent someone from seeking your involuntary commitment to a psychiatric facility. It also does not prevent a court from ordering your commitment to a facility and your treatment in that facility.

A doctor is not required to follow your Instructions if he/she finds that your Instructions are:

  • Medically inappropriate
  • Ethically inappropriate
  • Illegal

If your doctor cannot treat you for one of the above reasons, he/she is still required to:

  • Tell you or your agent of his/her finding and the reasons for it.
  • Make a “reasonable effort” to transfer you to another physician who is willing to follow your Instructions.
  • Continue to provide care, within the bounds of what he/she finds to be medically and ethically appropriate.

Authorizing Treatment Over Your Objection
“The Ulysses Clause”

One special power that you can give your agent in your Advance Directive is the power to authorize health care treatment over your objection.

Your power to say “No” to certain types of health care treatment is a power that Virginia takes very seriously. In most cases, you are able to refuse treatment, even if you have been found to be incapacitated. However, some people know that there may be times in the future when they are not thinking very clearly – they know that they might refuse treatment that they would actually want if they were not sick or injured.

In order to help people get the treatment that they want, even if they refuse it when they are sick, Virginia allows this option in ADs. This option gives your agent the power to tell your doctor to ignore you when you are saying “No” to treatment. But your agent should still talk to you to find out why you are refusing before acting over your objection. And your objections about end-of-life care are always honored.

You may hear this power called by its nickname, “The Ulysses Clause,” because of a connection to an ancient Greek story about a captain who told his crew to act over his objections.

Your options for this section of your AD

You can choose not to give your agent this power by crossing out this section.

You can choose to give your agent this power:
a. For all health care decisions, or
b. For some health care decisions, but not others.

Extra requirement for this special power

Because this section gives your agent a lot of power, the state of Virginia wants to make sure that you fully understand it. To check your understanding, you need to talk to a physician or licensed clinical psychologist about it. If the doctor thinks you understand the power, then he/she must sign his/her name on that page, saying that you understand the consequences of giving this power to your agent.

END-OF-LIFE CARE

When most people hear “Advance Directive,” they think of end-of-life care because of the history of ADs and well-known cases in the media. Virginia is a good example of a state that made legislative changes so that ADs can cover more than end-of-life care. Even though a lot of our website talks about planning for medical and mental health care, you can still plan ahead for end-of-life care, too.

Many people use their ADs to plan for end-of-life care because they have important values and wishes about quality of life and/or life-prolonging treatments. Also, planning for end-of-life care can be great help to loved ones who are faced with making decisions for the dying person.

It is important to understand what counts as “end-of-life.” There are two basic categories when talking about end-of-life:
1. If your death is imminent (very soon), e.g., end-stage cancer.
2. If you are in a persistent vegetative state, e.g., severe brain damage.

Death is imminent
If your death is “imminent,” that means that your death is very likely to happen soon. Medical treatment will not help you to recover – it will only keep you alive as long as treatments can. Treatments like tube feeding, IV fluids, and artificial respiration will not help you recover, they will only keep your bodily functions going
.
In your Advance Directive, you are able to write down your instructions about life-prolonging treatment – Do you want all life-prolonging measures? Do you want no life-prolonging measures? Do you want most types of life-prolonging treatment, but there are a couple you do not want?

Persistent vegetative state
If you are in a “persistent vegetative state,” that means you are unconscious, and it is reasonably certain that you will never recover, even with medical treatment. Other terms that people may use include “brain dead,” “permanent coma,” or “a vegetable.” Although your health care provider may be able to prolong your life through treatment such as tube feeding, IV fluids, artificial respiration, and other means, it is reasonably certain that you will not recover.

In your Advance Directive, you are able to write down your instructions about life-prolonging treatment – Do you want all life-prolonging measures? Do you want no life-prolonging measures? Do you want most types of life-prolonging treatment, but there are a couple you do not want? Do you want life-prolonging measures tried for a certain amount of time before stopping these measures?

A final point
We hope you will take the opportunity to plan ahead for end-of-life care with Advance Directives. If you do not, however, it is good to know that you can make an Advance Directive orally in the case of terminal illnesses. Oral ADs are valid when made in the presence of the attending physician and two witnesses.

An Add-On Option: Amendment Giving Your Agent the Power to Authorize Treatment Over Your Objection (“Ulysses Clause”)

Some available Advance Directive forms do not have a section for the “Ulysses Clause.” This add-on option allows you to attach a Ulysses Clause to your existing Advance Directive if it does not already have that section.

​In order to add this to your AD, you need to take a few steps:

Because it is going to be a part of your Advance Directive, it must meet the two basic requirements for Advance Directives in Virginia:
a. You must sign it.
b. It must be signed by two adult witnesses, who saw you sign it.
and
c. It must also meet the extra requirement of having a physician or licensed clinical psychologist sign it.

Virginia law states that the physician or psychologist must sign “at the time” that you sign the form. You should arrange to sign this form, and have it witnessed, on or near the date that you take your form to get it signed by your physician or licensed clinical psychologist.

Finally, you should attach copies of the amendment to all copies of your Advance Directive, including the copies that health care providers, health care facilities, and your agent have.

ADVANCED DIRECTIVES & HEALTH CARE PROVIDERS

Providers as facilitators
The state of Virginia has strict guidelines about who can facilitate Advance Directives. An Advance Directive is a legal document, so helping someone fill one out is the practice of law. As a result, it is illegal for anyone other than attorneys to help people complete an AD. There is one exception to this, however, health care providers can help people complete Advance Directives, as well.

Honoring ADs

The Health Care Decisions Act (HCDA) outlines some of the responsibilities surrounding healthcare providers and ADs:

  • ​It is the responsibility of the health care recipient to make sure that his/her physician has a copy of – or instructions to obtain a copy of – his/her AD
  • Once a provider knows that the AD exists, it is the provider’s responsibility to note that in the person’s medical records (Va. Code § 54.1-2983)
  • No provider will be liable for carrying out an AD that the provider believes to be legitimate (Va. Code § 54.1-2985, § 54.1-2988)
  • Providers must follow a person’s AD as closely as possible, within the boundaries of the law and acceptable medical practice (Va. Code Section 54.1-2990)

SUMMARY

Sometimes an accident or illness takes away a person’s ability to make health care choices. But the decisions must still be made.

Virginia law gives you the right to make many health care decisions in advance. One way to do this is by using a written advance directive. You can use a written directive to name an agent to make your health care decisions if you cannot. A written advance directive also can state your treatment preferences, especially about life-sustaining procedures.

You may use the forms which we have available for you you’re your request. These forms are provided by the Virginia Hospital & Healthcare Association for creating written advanced directives.

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