An advance health care directive is a legal document that spells out your medical care preferences in case you become too ill or injured to speak for yourself. It only goes into effect if you lose the ability to communicate your own decisions. There are two main types, and most people benefit from having both: a living will and a durable power of attorney for health care.
The Two Parts of an Advance Directive
A living will is a written set of instructions telling doctors which treatments you do and don’t want if you’re facing a medical emergency and can’t speak for yourself. It covers specific scenarios: whether you want CPR if your heart stops, whether you’d accept tube feeding, whether you want dialysis, and how aggressively you want infections treated with antibiotics. You can also address things like pain management, organ donation, and whether you’d prefer to die at home rather than in a hospital.
A durable power of attorney for health care names another person, called a health care proxy (also referred to as an agent or surrogate), to make medical decisions on your behalf. This person steps in when you can’t communicate, handling situations your living will might not have anticipated. A serious car accident, a stroke, or a sudden complication during surgery can create medical questions no one predicted. Your proxy fills that gap.
You can have one or both. A living will without a proxy can leave gaps when unforeseen decisions arise. A proxy without a living will may have to guess what you’d want. Together, they cover the broadest range of situations.
What a Healthcare Proxy Can and Can’t Do
Your proxy can only act when you are too sick to make decisions yourself. As long as you can communicate, your own wishes take priority. You also control how much authority your proxy has. You can grant them broad decision-making power over all medical choices, or limit them to a few specific ones. You can even require that they consult with certain family members before making a decision.
Common responsibilities of a health care proxy include deciding which treatments, procedures, or services you receive; choosing your health care providers and where you receive care; accessing your medical records; and making decisions about organ donation and what happens to your body after death. In some cases, a proxy can also become your legal guardian if one is needed. Giving your proxy some flexibility is important, since rigid instructions can make it harder for them to respond to unexpected medical circumstances.
When an Advance Directive Takes Effect
Your advance directive activates when a physician determines you lack the capacity to make your own medical decisions. This isn’t a simple on-off switch. A patient’s cognitive ability can fluctuate, particularly with conditions like delirium, severe infections, or the aftereffects of anesthesia. If capacity is lost temporarily, doctors may wait to see if it returns before relying on the directive, especially if hydration, nutrition, or treatment of the underlying cause could restore the ability to think clearly.
People with psychiatric conditions or cognitive impairments are not automatically assumed to lack capacity. The assessment is based on whether someone can understand their situation, weigh the risks and benefits of treatment options, and communicate a reasoned choice. Standards for this evaluation vary by state, and in complex cases, a psychiatrist with expertise in capacity assessments may be consulted.
How to Make an Advance Directive Legal
Requirements differ by state, but the general standard is straightforward. Your directive must be dated and signed by you, plus either two witnesses or a notary public. If you use witnesses, both must be over 18 and neither can be the person you’ve named as your proxy. They also can’t be your health care provider or anyone on your care team, and they can’t work at a care facility where you live. At least one witness must be someone who is not related to you by blood, marriage, or adoption, and who won’t inherit money or property from you when you die.
A notary public is only required if you don’t have two qualifying witnesses. The notary’s role is to confirm your identity and verify that you’re signing freely, not under pressure. You do not need a lawyer to create an advance directive, though consulting one can help if your situation is complicated or if you want to ensure the document meets your state’s specific requirements.
Advance Directives vs. POLST Forms
A POLST (Physician Orders for Life-Sustaining Treatment) is a separate document that people sometimes confuse with an advance directive. The key difference is who creates it and what it does. You write an advance directive yourself, with or without an attorney. It expresses your preferences. A POLST, by contrast, is a set of actual medical orders written by a doctor (or in some states, a nurse practitioner or physician assistant) after a care planning conversation with you or your surrogate decision maker.
A POLST applies to your current medical condition and carries the weight of a physician’s order, meaning emergency responders and hospital staff follow it immediately. An advance directive is broader, covering future hypothetical situations, and guides decision-making rather than issuing direct clinical orders. People with serious or chronic illnesses often have both.
Whether Your Directive Works in Another State
All 50 states and the District of Columbia have laws recognizing advance directives, but there is no unified national system for honoring out-of-state documents. Many states will accept a directive from another state in good faith. Colorado’s law, for example, presumes that a medical power of attorney from another state complies with Colorado law and allows health care providers to rely on it. But other states may question a document’s validity if it doesn’t match their own formatting or witness requirements.
If you split your time between states or travel frequently, it’s worth having your directive reviewed to confirm it meets the requirements of each state where you spend significant time. Some people create separate directives for each state, though this isn’t always necessary.
How to Update or Revoke a Directive
You can change or cancel your advance directive at any time, as long as you still have the capacity to make decisions. Major life events like a new diagnosis, a marriage, a divorce, or the death of your named proxy are all good reasons to revisit the document. To revoke a registered directive, you typically need to file a new form with whichever registry holds your original. In California, for instance, this means submitting a new registration form with a small fee. Amending details like your address or the location of your stored directive is usually free.
It’s a good idea to give updated copies to your proxy, your doctor, and any hospitals where you regularly receive care. An outdated directive in your medical chart can create confusion during an emergency.
Storing and Accessing Your Directive
Several states maintain electronic registries where you can file your advance directive so that hospitals and emergency responders can access it quickly. Virginia, for example, operates an Advance Healthcare Directives Registry through its Department of Health, which stores health care powers of attorney, living wills, anatomical gift declarations, do-not-resuscitate orders, and other advance planning documents. All information in these registries is kept confidential.
Even with a registry, keep physical or digital copies in places where they’ll be found when needed: with your proxy, your primary care doctor, in your hospital records, and in an accessible spot at home. Roughly one third of adults in the United States have completed an advance directive, which means the majority of people still haven’t documented their wishes. Having the document is only useful if the people who need it can find it at the moment it matters.