Advance care planning and advance directives

FederalState

Policymakers should encourage advance care planning. This should include the creation of advance directives. 

States should enact laws that: 

  • establish a nonjudicial means (such as mediation) for resolving disputes that may arise in the implementation of advance directives, 
  • provide clear guidelines for advance directives—such as nonhospital do not resuscitate orders—that protect incapacitated adults’ right to refuse life-sustaining treatment when they are not in a health care facility, 
  • ensure that any advance directives accompany a person who moves from one facility to another, and 
  • guarantee advance directives and advance care plans executed in one state are recognized in other states. 

Policymakers should establish and support decisionmaking protocols. Those protocols should ensure that the wishes of individuals with advanced, chronic, progressive illnesses are appropriately translated into visible and portable medical orders. Such orders should address medical contingencies, including hospitalization and the use of CPR, artificial nutrition and hydration, antibiotics, and ventilation. 

Policymakers should authorize nonjudicial surrogate healthcare decisionmaking for individuals who are incapacitated and do not have an advance directive. Such legislation must include a definition of incapacity and a nonjudicial process for determining incapacity. It also should: 

  • outline which individuals should serve as a surrogate for the person who is incapacitated and include provisions for people without relatives or friends, 
  • create a dispute resolution process, 
  • make clear that a surrogate decisionmaker’s authority is equal to that of an agent or proxy appointed in an advance directive, and 
  • require surrogates to act in the best interest of the person who is incapacitated. Generally, the surrogate’s decision should align with the incapacitated person’s wishes. This is known as the substituted judgment test. If the surrogate cannot make such a determination, the surrogate should determine the best interest based on all relevant information available.