An advance directive is a document, such as a living will or durable power of attorney, which provides instructions that guide an agent in making healthcare-related decisions on behalf of a patient. Its purpose is to empower patients to ensure their wishes and goals of care are followed.
Studies have shown that advance directives increase patient satisfaction by encouraging physician-patient communication and shared decision-making.1 It is therefore beneficial for physicians to discuss advance care planning with patients and their families, especially if there are concerns that the patient is at risk for loss of capacity.
Before having a discussion with patients and families, it is important to have a fundamental understanding of the components of an advance directive and how it impacts patient care.
What is an Agent?
An agent is a person appointed by the patient to make medical decisions on their behalf. An agent can be an adult family member, friend, or any trusted person identified by the patient. An agent cannot be the patient’s treating physician or any employee at your practice. However, an agent who is related to, or who is a coworker of the patient, is a recognized exception. In such scenarios, that individual can serve as an agent but cannot concurrently participate as a member of the care team.
What Healthcare Decisions Can an Agent Make?
An agent can make all healthcare decisions except those decisions expressly limited in the advance directive. An agent is authorized to:2
Accept or refuse treatment
Withdraw consent for treatment including nutrition, hydration, and cardiopulmonary resuscitation
Choose or reject any physician, healthcare provider, or facility
Receive and consent to release of medical information
Donate organs and tissues
Authorize autopsy and dispose of remains
The agent’s decisions must be consistent with the patient’s wishes, values, and goals of care.
What Makes an Advance Directive Valid?
Although there is no duty to investigate the validity of an advance directive, you should ensure that the following are present in the directive:3
Two adult witness’ signatures
Witnesses cannot be the healthcare provider (physician), physician’s employee, operator or employee of a community care or residential care facility, or the appointed agent. An acknowledgment by a notary public may be used.
Signature of patient advocate or ombudsman for advanced directives executed when an individual is a patient in a skilled nursing facility
Witness declarations, including one witness who is not related to the patient
Date that the advance directive was executed
A physician should initiate further review when a newly executed advance directive is presented during the time when the patient’s decisional capacity is in question and when family members are disputing the patient’s directives.
What if a Patient Presents With an Advance Directive from Another State?
California does not prohibit out-of-state advance directives.4 The physician should read the advance directive in its entirety and ensure that the signature, date, and witness requirements are met. If these elements are present, the practice must follow the directive.
Revocation of an Advance Directive
There are a variety of reasons why a patient would want to revoke their advance directive. One of the most common reasons is related to changes in goals of care. A patient can revoke their advance directive at any time. However, if the patient wishes to revoke the power of an agent, they must directly express this desire to the attending physician. A revocation should be documented in the patient’s medical record. If there are concerns regarding the patient’s capacity to revoke, it is recommended the physician seek further guidance, e.g., from a bioethics committee.
Does A Physician Have the Right to Refuse to Comply With an Advance Directive?
A physician has the right to refuse to comply with an advance directive if the requested treatment is medically inappropriate. In these cases, it is important that the physician communicates his concern to the agent. If the physician and agent are unable to resolve the disagreement, the physician can elect to terminate the patient-physician relationship after appropriate notice is given to the agent.
Tips on How to Discuss Advance Directives with a Patient:
Having an advance directive discussion with a patient can be uncomfortable and difficult to approach. However, advance directives promote patient autonomy and provide physicians with clearer guidance on end-of-life decisions. The following are guidelines that can help a physician facilitate the conversation:5
Invite the patient to share their desire regarding future medical care
Would you like to talk about what might happen in the future, and how we could make sure your wishes are followed?
Allow the patient to determine whether they want others involved in advanced care planning
Would you like to talk about this by yourself, or are there others you would like to join us?
Determine if the patient has thoughts about the medical care that they would like to receive in the future
Has someone close to you been faced with an end-of-life decision? What would you have wanted in that situation?
Ask about advance care preferences
If you were to stop breathing, would you want to be on a machine that breathes for you?
Have the patient identify someone who will carry out their wishes in case they are unable to in the future
If you became unable to inform your care team what kind of care they should provide you, who would you want to make medical decisions for you?
Encourage the patient to complete an advance healthcare directive form
These are important decisions that will impact your care in the future; we should make sure to get them in writing.
By understanding the components of advance directives and planning, the physician will ultimately improve patient satisfaction and trust. Since January 2016, the Centers for Medicare & Medicaid Services (CMS) approved advanced care planning as a distinct service that allows providers to bill Medicare under Current Procedural Terminology (CPT) codes 99497 and 99498.6 As a result, providers who document that an advance care planning discussion was completed will likely receive a Medicare reimbursement. Private insurers may also offer reimbursement for advance healthcare; therefore, it is recommended that providers review their contracts.
If there are any concerns regarding an advance directive, members should contact CAP for additional guidance via the Risk Management Hotline at 800-252-0555.
Bryan Dildy is a Senior Risk Management & Patient Safety Specialist for CAP. Questions or comments related to this article should be directed to BDildy@CAPphysicians.com.
1Detering KM, Hancock AD, Reade MC, Silvester W. The impact of advance care planning on end of life care in elderly patients: randomized controlled trial. BMJ 2010; 340:c1345.
2California Hospital Association Consent Manual 48th Edition. 2021.
3California Probate Code § 4674
4California Probate Code § 4676
5Childers JW, Back AL, Tulsky JA, Arnold RM. REMAP: A Framework for Goals of Care Conversations. J Oncol Pract. 2017 Oct;13(10):e844-e850. doi: 10.1200/JOP.2016.018796. Epub 2017 Apr 26. PMID: 28445100.
6Frequently Asked Questions about Billing the Physician Fee Schedule for Advance Care Planning Services, https://www.cms.gov/medicare/medicare-fee-for-service-payment/physician… (last visited Jan. 27, 2023).