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Advance Directives

Advance Directives

Advance Directives are formulated to make known to all disciplines involved in a patient/client’s care the desires of the patient/client in the event the patient/client is unable to verbalize his/her wishes relating to his/her own medical treatment.

Medicare Regulation:

Advance Directive Requirements. Effective December 1, 1991, participating Home Health Agencies must comply with the advance directive provisions of ‘4206 of OBRA 1990. Therefore, an agreement per ‘1866 of the Act with a Home Health Agency includes that the Agency must, by written policies and procedures, for all adult individuals: inform them, in writing of state laws regarding advance directives; inform them, in writing, of its policies regarding the implementation of advance directives (including a clear and concise explanation of a conscientious objection, to the extent that state law permits, for a Home Health Agency or any agent of the Agency that, as a matter of conscience, cannot implement an advance directive); document in the individual’s medical record whether the individual has executed an advance directive; not condition the provision of care or otherwise discriminate against an individual based on whether that individual has executed an advance directive (since the law does not require the individual to do so), and educate staff and the community on issues concerning advance directives. (See 42 CFR 484.10(c) (2) (ii).)


Adult:  A person 18 years or older, or a person legally capable of consenting to his or her Medical treatment

Advance Directives:  A document in which a person states choices for medical treatment, including a Do NOT Resuscitate (DNR) order and a DO NOT Intubate (DNI) order

Attending Physician:  The physician who is primarily responsible for the medical care of a patient/client while receiving home health care services

Mental Health:  A Mental Health Treatment Declaration is a legal document that allows you to tell your physical and other health care providers about you preferences and instructions regarding your mental health care treatment if you are no longer able to make these decisions yourself.


Mental health treatment is defined by State law to include:

  1. Electroconvulsive or other convulsive treatment
  2. Psychoactive drugs
  3. Emergency mental health treatment


OUT OF HOSPITAL DNR (Do Not Resuscitate):  Out of Hospital DNR means a legally binding out of hospital do-not resuscitate order, in the form specified prepared and signed by the attending physician of a person, that documents the instruction of a person or a person’s legally authorized representative and directs health care professionals acting in an out-of-hospital setting not initiate or continue the following life–sustaining treatment:

  1. Cardiopulmonary resuscitation.
  2. Advanced airway management.
  3. Artificial ventilation.
  4. Defibrillation.
  5. Transcutaneous cardiac pacing; and
  6. Other life-sustaining treatment specified by the board under state statute.
  7. DNR does not include authorization to withhold medical interventions or therapies considered necessary to provide comfort care or to alleviate pain or to provide water nutrition.

Patient Self Determination Act:  A Federal Statute enacted as part of the 1990 Omnibus Budget Reconciliation Act (OBRA) (PL 101-508) which requires that a health care facility provide information regarding the right to formulate advance directives concerning health care decisions.

Surrogate Decision Maker:  A person appointed to make decisions for someone else.  This person may be formally appointed (as in a Durable Power of Attorney for Health Care) or in the absence of a formal appointment, may be recognized by virtue of a relationship with the patient/client (such as the patient/client’s next of kin or close friend).

Terminal Condition:  An incurable condition caused by an injury, disease, or illness, which, regardless of the application of life sustaining procedures, would, within reasonable medical judgment, produce death, and where the application of life sustaining procedures only postpones the moment of death.

Agency Policy:

  1. The Agency recognizes that all persons have a fundamental right to make decisions relating to their own medical treatment, including the right to accept or refuse medical care.
  2. The Agency will encourage individuals and their families to participate in decisions regarding health care and treatment.
  3. Advance Directives, such as Living Wills, Durable Powers of Attorney, and DNR (Do Not Resuscitate) Orders will be followed to the extent permitted and required by law.
  4. In the absence of Advance Directives, the Agency will provide appropriate care according to the plan of treatment authorized by the attending physician.
  5. Additionally, the Agency will not condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive.
  6. If the Agency is unable to implement the patient/client’s Advance Directives, every effort will be made to facilitate the patient/client’s transfer to an alternate agency that has the capability to facilitate the patient/client’s Advance Directives.
  7. The Agency will honor the clients’ advance directives and is willing and able to provide all care in accordance with the client’s advance directives within the law.


  1. During the admission visit, the admitting qualifying staff member will:
    1. Verify if the patient/client has executed an Advance Directive
    2. Obtain a copy of DNR orders for the chart if they are a part of the Advance Directive
    3. Provide the patient/client with written and verbal information regarding:
  1. State Advance Directive Guidelines
  2. Advance Directive Information Forms
  • Agency Advance Directive Policy
  1. Policy for Withholding Resuscitative Measures
  2. Policy for Withdrawal of Life Sustaining Equipment (if applicable)
    1. Patients will be encouraged to ask questions regarding the execution of the forms.  Documentation of such shall be entered into the medical record.  At no time may any staff member either advocate or discourage the execution of an advance directive by the patient/client.
  1. The patient/client is encouraged to participate in all aspects of decision-making regarding home health care and treatment.  Statements by a competent patient/client of his or her desire to accept or refuse treatment shall be documented in the patient/client’s medical record.
  2. If the patient/client wishes to initiate and complete the Advance Directive process and the patient/client and/or family is unable to independently make contact with community resources to exercise a Living Will, a referral will be facilitated for medical social worker assistance:
    1. Upon physician referral, the Medical Social Worker will contact the referring/admitting nurse to obtain pertinent medical/psychosocial information
    2. The patient/client and/or family will be contacted by the medical social worker to discuss.
  1. Available options
  2. Witness requirements. Two qualified witnesses are required.
    1. Once an option is decided by patient/client and/or family then the medical social worker will guide and/or assist the individual in contacting available resources.
    2. If additional assistance is requested or required and the patient/client is not open to medical social services through Medicare and/or Medicaid, the patient/client will be provided with available community resource listings.
    3. If the patient/client and/or family requests medical social worker intervention the medical social worker will utilize the Advance Directive form provided by the Agency that is specific to the state in which the patient/client resides.
    4. The RN or the Social Worker will complete the form as necessary with patient/client and family’s involvement and request that patient/client or family inform the physician for orders consistent with the wishes of the of the patient/client and to insure that documentation of the presence of the Advance Directive and its location become a part of the patient/client’s home health care record.
    5. The patient/client will be requested to contact the referring/admitting nurse if any changes or modifications to the Advance Directive are desired, and the procedure will begin from its start above.
  1. If it is determined that the patient/client and/or family require more information than the RN or the social worker is able to provide, then the patient/client’s physician will be notified, and the patient/client and/or family will be provided with available community resource listings and guided to consult with their legal counsel for further questioning or for the purpose of executing an advance directive.
  2. The admitting qualifying staff member will document in the medical record that the patient/client has executed an advance directive.  The attending physician shall be notified of all advance directives, including both written and verbal statements by the patient/client. If the patient/client executes an advance directive after the start of care, notification of the physician will be documented in the patient/client’s medical record on a form reflecting ordered changes.
  3. If the patient/client is unable to sign that he/she has received instructions regarding the law, a designated individual must receive the information and sign the appropriate forms. The relationship of that individual to the patient/client must be documented.
  4. All staff involved with the patient/client’s plan of care/treatment will be notified by the primary nurse responsible for the care that an Advance Directive was executed.
  5. The medical record of any patient/client having an Advance Directive will be flagged with an Advance Directive label.
  6. Any changes in the Advance Directive/Living-Will will be documented with a written change of order and in the progress note.  Upon recertification the primary nurse will verify that the Advance Directive and Power of Attorney for Health Care are current and have not been revoked.
  7. Educational information about Advance Directives and the Agency’s policies and procedures regarding them will be provided to the medical, nursing, allied health professionals, and home health office staff and volunteers during the orientation period.  In order to educate the community about Advance Directives, the Agency will participate in community forums, and make available written materials regarding Advance Directives.

Health Care Advance Directives – The Patient/Client’s Right to Decide:

All adult individuals in health care facilities such as hospitals, nursing homes, hospices, home health agencies, and health maintenance organizations, have certain rights under state law.

You have a right to fill out a paper known as an “advance directive.” The paper says in advance what kind of treatment you want or do not want under special, serious medical conditions that would stop you from telling your doctor how you want to be treated. For example, if you were taken to a health care facility in a coma, would you want the facility’s staff to know your specific wishes about decisions affecting your treatment?

What is an Advance Directive?

An advance directive is a written or oral statement which is made and witnessed in advance of serious illness or injury, about how you want medical decisions made.     Two forms of advance directives are:

A “Living Will” and Health Care Surrogate Designation”

An advance directive allows you to state your choices about health care or to name someone to make those choices for you if you become unable to make decisions about your medical treatment. An advance directive can enable you to make decisions about your future medical treatment.

What is a Living Will?

A living will generally states the kind of medical care you want or do not want if you become unable to make your own decisions. It is called a “living will” because it takes affect while you are still living. State law provides a suggested form for a living will. You may use it or some other form. You may wish to speak to an attorney or physician to be certain you have completed the living will in a way so that your wishes will be understood.

What is a Health Care Surrogate Designation?

A “health care surrogate designation” is a signed, dated and witnessed paper naming another person such as a husband, wife, daughter, son, or close friend as your agent to make medical decisions for you, if you should become unable to make them for yourself. You can include instructions about any treatment you want or wish to avoid. State law provides a suggested form for designation of a health care surrogate. You may use it or some other form. You may wish to name a second person to stand in for you, if your first choice is not available.

Which is Better:

You may wish to have both or combine them into a single document that describes treatment choices in a variety of situations and names someone to make decisions for you should you be unable to make decisions for yourself.

Do I have to write an Advance Directive under State Law?

No, there is no legal requirement to complete an advance directive.  However, if you have not made an advanced directive or designated a health care surrogate, health care decisions may be made for you by a court appointed guardian, your spouse, your adult child, your parent, your adult sibling, an adult relative, or a close friend in that order. This person would be called a proxy.

Can I change my mind after I write a Living Will or Designate a Health Care Surrogate?

Yes, you may change or cancel these documents at any time. Any change should be written, signed, and dated.  You can also change an advance directive by oral statement.

What if I have filled out an Advance Directive in another state and need treatment in a health care facility in this state?

An advance directive, completed in another state, in compliance with the other state’s law, can be honored in this state.

What should I do with my Advance Directive if I choose to have one?

Make sure that someone such as your doctor, lawyer or family member knows that you have an advance directive and where it is located

  1. If you have designated a health care surrogate, give a copy of the written designation form or the original to the person.
  2. Give a copy of your advance directive to your doctor for your medical file and keep a copy of your advance directive in a place where it can be found easily
  3. Keep a card or note in your purse or wallet which states that you have an advance directive and where it is located.
  4. If you change your advance directive, make sure your doctor, lawyer and/or family member has the latest copy.
  5. For further information ask those in charge of your care.