Does an Advance Medical Directive Have to be Followed?

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An advance medical directive allows a person to write out specific healthcare decisions that they want to make based upon certain conditions, such as being diagnosed with a terminal illness. In the event that the patient is not able to communicate his or her wishes, the directive serves as a guide to medical professionals about the types of medical treatments that the patient would or would not want to receive if he or she were able to communicate this information.

However, in some circumstances the instructions on this directive may be disregarding, raising the question of whether the person disobeying the directive can be held liable.

Advance Directives

Advance directives contain information about the types of medical treatments the patient wants to have administered or withdrawn. The information that can be included in such a document may be specified in a state statute. There may be statutory forms that can be used for this purpose. However, states may allow for other forms to serve this purpose so long as they follow certain guidelines, such as witness or notary requirements. For example, an advance directive may be stated to apply if the victim is terminal, permanently unconscious, in a persistent vegetative state, permanently confused, dependent on all activities of daily living or under other specific conditions. These documents are often used to dictate end-of-life decisions. The document may specify whether the patient wants to receive CPR, life support, IV fluids, breathing support, tube feeding, chemotherapy or other specified treatments.

An advance directive may be used in conjunction with a designation of a healthcare power of attorney or healthcare proxy. This other type of document designates a person to make healthcare decisions on behalf of him or her. This designated agent should consider what the patient would have wanted under the circumstances and consult the advance directive.

States differ as to which document will prevail over the other. For example, some states find that an advance directive is the words of the patient and should be honored over what a third party says the patient would have wanted. However, other states give more deference to a healthcare proxy.

Duty to Follow Advance Directives

Medical providers and the agent named as the health care proxy usually have the duty to follow the instructions included on an advance directive. If a health care proxy is named, medical providers often have the duty to follow the instructions related to a patientís care. Healthcare providers may be held liable in some circumstances if they fail to follow the directives. An agent who knowingly goes against the wishes of the patient to impose his or her own wishes or who tries to use an old advance directive to have authority that is no longer his or hers may also be held liable for such conduct.


In some circumstances, healthcare providers may be able to avoid liability even if they do not follow the advance directive. For example, the health care directive may set forth decisions that are opposed to the doctorís conscience, the directive is opposed to a current policy at the medical facility or the directive provides statements that would be inconsistent with good medicine practices or would result in standards that are below the required level of care required of the healthcare provider. In such circumstances, the health care provider is required to inform the patient of such factors so that he or she can take steps to be transferred to another doctor who will follow instructions.

A unique exception available in many states to health care providers in this situation is that they may be able to avoid liability when their refusal to follow an advance directive is based on an ethical objection to the instructions. In previous decades, healthcare providers may have objected to a patientís choice to die. However, today many healthcare professionals object to family members who require more aggressive life support when the healthcare provider believes that this is wrong because it would not provide a good quality of life for the patient. Again, in these situations, the healthcare provider is often required to inform the patient of the refusal to follow these instructions so that he or she has an opportunity to be transferred to another medical provider.

Not in Possession

Due to administrative errors, forgetfulness or other factors, sometimes medical providers do not have advance directives in their records. To protect their interests, patients should ensure that they provide a copy of their advance directive to their medical providers, the hospital and any agent they have named. Some states have registries to help streamline this process and to make such documents accessible to medical providers.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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