Overcoming the Balkanization of State Advance Directive Laws

Abstract

very person considering completing a health care advance directive has to think about the legal requirements for a valid advance directive in his or her state. It can be confusing because these laws can be complex and vary from state to state. Countless books, guides, and pamphlets have been written about completing advance directives but, in the end, they are forced to provide forms for only one or a few states, or they advise readers to consult the legal rules in their own state. National forms of various stripes would be a valuable boost to advance care planning. For the public, it would provide nationally available options with differing philosophical, religious, value-oriented, or condition-based approaches that would engage individuals in advance care planning in a more flexible, personcentered landscape. Planning for incapacity and dying is a difficult task. Individuals approach it, or avoid it, in their own personal way. The National Academy of Medicine in its seminal 2015 report, Dying in America, recognized that. "The many and varied requirements embedded in state laws covering advance directives also discourage their completion." 1 Legal rules and language are commonly not understood, and most do not have access to a lawyer. Advance directive form and language requirements have, in effect, created a Procrustean bed that individuals feel they must fit into in order to engage in advance care planning.

Universal Advance Directives—Necessary but Not Sufficient

“…In the present issue of the Journal of Law, Medicine & Ethics , Charles Sabatino reviews the potential reach of universal advance directives (AD). 1 By examining each state's health care power of attorney laws, he determined that a universal AD could feasibly be implemented in 41 of 50 states and the District of Columbia (five more than in 2005). He describes six barriers to a universal AD; some surmountable (e.g., witness requirements, execution requirements, and effectiveness triggers) others, insurmountable (e.g., mandatory forms, mandatory disclosures, and specific language regarding certain decisions, such as withholding nutrition).…”