Estate Planning

Advance Medical Directives

The Virginia Health Care Decisions Act authorizes any competent adult (principal) to make an advance medical directive, which incorporates both a living will (a written declaration which allows you to state your wishes regarding the use of life-prolonging medical care if you are terminally ill) and a medical power of attorney (which allows you to appoint another person to make any or all health care decisions for you if you are incapacitated).

A person is considered incapacitated if he or she suffers from a mental and/or physical disorder which “preclude[s] communication or impair[s] judgment as a result of the inability of the patient to make an informed decision” about a particular medical treatment because he or she is “unable to understand the nature, extent or probable consequences of the proposed medical decision, or to make a rational evaluation of the risks and benefits of alternatives to that decision.”  The incapacity determination must be made by the principal’s attending physician and a second licensed capacity reviewer, who is not involved in the principal’s care, after a personal examination of the principal.

The agent must abide by the directions stated in the advance medical directive.  When the principal has not stated whether or not he or she would want a specific treatment, the agent is authorized to make a decision based upon what the agent knows about the principal’s beliefs and what the physicians consider medically appropriate.  An advance directive in Virginia may be revoked in writing, orally or by destruction of the document by the declarant.

There is one important caveat to the authority of the agent regarding mental health care.  The only time an agent can authorize mental health treatment, or even admit the principal to a mental health facility over the principal’s protests, is if the attending physician thinks it is medically appropriate and the principal included an express statement in the advance medical directive that such treatment be administered even if he or she protests.  In that instance, the advance medical directive must also contain a physician’s signature attesting that the principal understood the provision and was capable of making an informed decision at the time the advance medical directive was created.  It may be appropriate for a principal with a history of mental health issues to include such a provision.

It is important to note that A Do Not Resuscitate Order (“DNR”) is completely separate from an advance medical directive, and with a much different purpose.  A DNR is an order written by a physician which directs that cardiopulmonary resuscitation be withheld in the event of cardiac or respiratory arrest.  Legislation passed in 2010 added licensed health care practitioners at registered continuing care communities to the list of those authorized to follow DNRs.