In a Perspective in the New England Journal of Medicine, Joshua Rolnick, a Penn National Clinician/VA Scholar, and LDI Senior Fellows David Asch and Scott Halpern suggest that an advance directive (AD) should be understood primarily as a clinical document, rather than a legal one. The authors argue that the existing legal framework around ADs – a document containing a designated health care decision maker, a living will, or both – creates several impediments to successful advance care planning and does little to prevent disputes over the care provided.

The authors identify three major legal limitations to creating, updating, and incorporating an AD in a health care setting, and suggest modifications to state laws.

First, and perhaps most importantly, requiring witnesses, notaries and the use of specific templates deters patients from making even the most basic plans. These barriers also make ADs more difficult to update and lead to them being perceived as “static, perhaps even irrevocable, rather than as one element of an evolving process of advance care planning.” They suggest eliminating witnessing and notary requirements.

Second, the fact that electronic signatures are not allowed for ADs limits the usefulness of online platforms designed to streamline advance care planning, and means that patients have to go through a tedious, multi-step process. They suggest that states clarify that electronic signatures and non-statutory forms, including electronic ones, are valid; and,

Third, the legal framework around ADs steers advance care planning from doctors’ offices to lawyers’ offices. This makes updating ADs difficult as patients progress through different stages in their care. Rolnick, Asch and Halpern point out:

Although lawyers can help people plan for the future, patients may have the mistaken impression that preparing an advance directive in a lawyer’s office completes their advance care planning….Completing advance directives in health care settings would allow them to be uploaded into electronic health records and to reach the clinicians who will ultimately be responsible for carrying out the patient’s wishes.

Reconceptualizing ADs as clinical documents offers two additional benefits: insurance typically covers medical appointments to discuss end-of-life planning, but not lawyer visits: and, “most people have a doctor, but only some have a lawyer.” The authors point to an existing precedent for a clinical document that guides end-of-life decisions without legal formality: Physicians Orders for Life Sustaining Treatment (POLST) forms. These provide binding directions for emergency medical teams making rapid decisions about resuscitation in the field. POLST forms require only a clinician’s signature, no witnesses, and no notaries. To maximize the benefits of advance care planning, ADs, which share the goal of respecting a person’s end-of-life wishes, could similarly be treated as conventional medical orders.    

Would these changes leave the system more vulnerable to fraud and more open to disputes? Rolnick, Asch and Halpern don’t think so. Courts consider any documentation of patients’ preferences and “already have the tools they need to resolve disputes, just as they do in disputes over medical decisions not covered by ADs.” They suggest that current legal formalities, which deter patients from documenting their preferences, may be increasing the likelihood of disputes between providers and patients’ family members. A more fluid AD would facilitate the conversation between providers and patients’ family members and bring decision-making closer to the bedside and the doctor’s office.