Advance Directives - October 2014
In Virginia, any adult who is capable of making an informed decision may, at any time, make a written advance directive to address health care in the event he or she is later determined to be incapable of making an informed decision. Written advance directives must be signed by the maker (the “declarant”) in the presence of two subscribing witnesses. Oral advance directives, in the presence of two witnesses, are permitted only if the declarant has been diagnosed as being in a terminal condition.
Written advance directives can (1) specify the health care the declarant does or does not authorize; (2) appoint an agent to make health care decisions for the declarant; and (3) specify an anatomical gift, after the declarant’s death, of all of the declarant’s body or an organ, tissue or eye donation. Advance directives may also authorize an agent to take any lawful actions necessary to carry out the declarant’s decisions, which may include, but are not limited to, the granting of releases of liability to medical providers, the release of medical records, and the making of decisions with regard to who may visit the declarant/patient.
If a declarant executes an advance directive in another state, the advance directive is deemed validly executed for purposes of Virginia law if the advance directive was executed in compliance with the laws of Virginia or the laws of the state in which the declarant executed the advance directive.
So long as the declarant is capable of understanding the nature and consequences of his or her actions, the declarant may revoke the advance directive at any time (1) by a signed, dated writing, (2) by physical cancellation or destruction of the advance directive by the declarant or another in the declarant’s presence and at the declarant’s direction, or (3) by oral expression of intent to revoke.
An original of the advance directive should be provided to the declarant’s primary care physician for placement in his or her medical file. If the declarant so desires, he or she may submit the advance directive to the Advance Health Care Registry, which is a secure online central registry for advance directives made available by the Department of Health. Advance directives submitted to the Registry remain confidential and are exempt from the provisions of the Virginia Freedom of Information Act. Virginia also has a free online advance directive registry at http://www.VirginiaRegistry.org. Information stored on the Virginia registry is safe and confidential and the only persons with access to an individual’s information are the individual him or herself, health care providers, and anyone the individual designates will have access to the information.
Attorneys do not have the authority to prepare a durable do not resuscitate order on behalf of their clients. Durable do not resuscitate orders may be issued by a physician for a patient with whom the physician has a bona fide physician/patient relationship, so long as the patient consents or, if the patient is a minor or is otherwise incapable of making an informed decision regarding consent for such an order, upon the request of and with the consent of the person authorized to consent on the patient's behalf.