Advance directives and advance care planning


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 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 applicable in other states.

Policymakers should establish and support decision-making protocols to ensure that the wishes of patients 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 decision-making if an incapacitated patient has not executed an advance directive. Such legislation should have the following provisions:

  • A definition of incapacity must be included and a nonjudicial process for determining incapacity should be offered.
  • Who may make health care decisions for the incapacitated individual, including provisions for patients without relatives or friends, should be outlined.
  • The standard that surrogates should use in making decisions should be established. Generally, that standard should be what the patient would have wanted if the wishes are known to the surrogate, known as the substituted judgment test. If the patient’s wishes are unknown, the surrogate should determine the patient’s best interests based on all relevant information available to the surrogate.
  • A process for the resolution of disputes that may arise should be detailed.
  • A surrogate decision maker’s authority should be equal to that of an agent or proxy appointed in an advance directive.