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As of 1990, 40 states and the District of Columbia allowed adults to create what is popularly called a "living will" (Strauss et al., 1990). These statutes vary in their particulars, but they generally envision that individuals may make legally binding arrangements to the effect that they shall not be sustained by medical treatment that artificially prolongs the dying process if they are in a terminal condition and can no longer make decisions.
The statutes include several safeguards against abuse. Most include a requirement that the two witnesses to the signing of the document be neither related to the patient nor involved in his or her treatment or financial support. Also, the determinations that the patient fits the statutory definition of terminal and is unable to make decisions sometimes must be made by at least two physicians. A mentally competent individual is always entitled to revoke his or her advance directive. The statutes vary on whether nutrition and hydration are considered "artificially life-sustaining" treatments. Some statutes explicitly exempt nutrition and hydration from the care a patient may choose to refuse, others give the signer the option to explicitly include them, while a third group is silent on the matter (Strauss et al., 1990).
Skeptics of living wills argue that these documents, which may be standard forms approved by the legislature of some states, provide little practical guidance in real life clinical situations, which often involve many more factors or contingencies than anticipated by standards forms (see, e.g., Brett, 1991; Lynn, 1991). Indeed, by leading patients to believe that the signing of a living will means that their preferences for an end-of-life treatment plan have been made clear, these documents could even discourage active and ongoing discussions among patients, their families, and health care professionals. In contrast, a document designating a surrogate decisionmaker could encourage such communication.
Designation of Surrogate Decisionmakers
Another legal option for advance care planning involves the designation of a surrogate to act on one's behalf in the event one becomes incompetent to make decisions about medical care. State statutes (or, in some cases, sections within the living will statutes) vary in the amount of authority a person can assign to a surrogate. For example, in California, the patient's agent, who is assigned durable power of attorney7 for health care,
"Durable" power of attorney differs from general power of attorney in that it does not expire when the designator loses the competence to make decisions. This is integral to health care decisionmaking, as it is exactly at the time of a patient's incompetence that the designated attorney-in-fact's role begins.