advance-directive

---
name: advance-directive
description: Drafts attorney-supervised, state-compliant U.S. Advance Health Care Directives that appoint health care agents, resolve the HIPAA access gap, and record clinically usable treatment preferences. Enforces state-law verification for execution formalities, statutory forms, and special limitations. Addresses adversarial risks from family disputes and institutional challenges. Use when drafting advance directives, health care proxies, living wills, health care powers of attorney, HIPAA medical authorizations, or end-of-life planning documents.
metadata:
  author: casemark
  practice_areas:
    - Transactional
  document_types:
    - Agreement
  skill_modes:
    - Drafting
---

# Advance Health Care Directive

Drafts a state-compliant AHCD that appoints health care agents, resolves the HIPAA access gap, and records clinically usable treatment preferences — optimized for real-world acceptance by hospitals and providers under time pressure.

## Prerequisites

1. **Jurisdiction** — client's state of residence + any secondary-care states; portability needs
2. **Client identity** — full legal name, DOB, address, prior names (for medical record matching)
3. **Capacity context** — any cognitive diagnoses or concerns; flag for attorney if borderline
4. **Existing documents** — prior AHCDs, living wills, DNR/POLST, organ donor registrations, POAs, estate plans, guardianship orders
5. **Agent details** — for each agent/alternate: name, relationship, address, phone, email, availability, willingness; confirm no facility-employee conflicts
6. **Incapacity trigger choice** — springing (upon clinical determination) vs. immediate
7. **Treatment preferences** — CPR, ventilation, artificial nutrition/hydration, dialysis, antibiotics, hospitalization vs. comfort care, palliative sedation, religious constraints
8. **Organ donation / disposition** — organs/tissues, purposes (transplant/research/education), registry status, autopsy preferences, disposition of remains
9. **Execution logistics** — notary access, qualified witnesses, execution location; SNF patient status

If any prerequisite is missing, pause and ask — do not assume or fill gaps.

## Output Structure

### Step 1: Verify State Law Framework

Before drafting, verify from authoritative sources (current statute, health dept. guidance, state bar resources):

| Element | Verify |
|---------|--------|
| Statutory form | Required? Safe harbor? Verbatim language mandated? |
| Execution formalities | Witnesses vs. notary, witness count, disqualification categories |
| Effectiveness trigger | Default rules, capacity determination procedures |
| Special limitations | Pregnancy restrictions, mental health authority, anatomical gift integration, facility advocate rules |
| Revocation methods | Oral, written, destruction, notification requirements |
| Instrument structure | Combined vs. separate (agent appointment + living will) |

**Anti-hallucination rule**: Do not rely on parametric memory for state execution rules or statutory language. Search and cite the current statute with URL. If unable to verify, insert: `[VERIFY: STATE LAW REQUIREMENTS — Execution formalities must be conformed to [STATE] law before signing.]`

### Step 2: Agent Appointment

Draft so a nurse can identify the decision-maker in seconds. Include:

- Agent name (bold), relationship, full contact info
- Effectiveness trigger (springing or immediate, per client choice)
- Who determines incapacity (attending physician; some states require two)
- Broad authority scope: consent/refuse/withdraw treatment; medical records access; admission/discharge; provider selection; end-of-life decisions
- **Conflict-resolution hierarchy**: written instructions in living will prevail over agent judgment; for unaddressed situations, agent applies substituted judgment standard
- Declaration that client intentionally chose the named agent

**Template:**
> I appoint **[NAME]**, [RELATIONSHIP], as my Health Care Agent.
> Address: [ADDRESS] | Phone: [PHONE] | Email: [EMAIL]
>
> My Agent may consent to, refuse, or withdraw any health care, including life-sustaining treatment, consistent with my instructions and known wishes. My Agent may access and authorize release of my health information under HIPAA and applicable state law. If my Agent's judgment differs from any specific instruction in this directive, my written instruction shall control. This appointment is effective when my primary treating clinician (and any additional clinician(s) required by [STATE] law) determines I lack capacity. [VERIFY: state determination standard.]

### Step 3: Alternate-Agent Succession

- Alternates act only if all prior agents are unavailable, unwilling, or disqualified
- Providers may rely on a representation of unavailability per state law
- If family conflict likely: include statement that client intentionally chose agent over other relatives; agent may consult family but need not obtain consensus
- **Co-agents** (discouraged): if client insists, draft decision rule (unanimous/majority), tie-breaker, and verify state permits co-agents

### Step 4: HIPAA Authorization (Resolves the HIPAA Gap)

**Critical issue**: With a springing AHCD, the agent has no authority until incapacity is determined — but the physician can't share information with the agent to establish the trigger. **Solution**: Include an **immediate** HIPAA authorization regardless of whether decision-making authority is springing.

Required elements per 45 C.F.R. § 164.508:
- Identify agent + alternates as permitted recipients
- Scope of information authorized
- Effective immediately upon signing; remains until revoked

**Heightened-protection records** — flag for attorney verification:
- Substance use disorder records: 42 C.F.R. Part 2 (specific authorization elements)
- HIV/AIDS records: state-specific restrictions
- Mental health records: state-specific restrictions

**Template:**
> Effective immediately, I authorize my Health Care Agent (and any successor) to access all my medical records, communicate with my health care providers, and receive my protected health information under HIPAA (45 C.F.R. § 164.508) and applicable state law. This authorization remains in effect until revoked. [VERIFY: required elements; heightened protections for substance use, mental health, or HIV/AIDS records.]

### Step 5: Living Will — Treatment Instructions

Draft in **layered structure**: (1) overarching values statement → (2) scenario-specific instructions → (3) fallback for unaddressed situations.

**Avoid**: "no heroic measures," "extraordinary care" — no clinical definition. Use specific interventions.

| Intervention | Address per clinical context |
|---|---|
| CPR | May vary by scenario (cardiac event while healthy vs. end-stage) |
| Mechanical ventilation | Include short-trial exception if recovery reasonably likely |
| Artificial nutrition/hydration | Distinguish tube feeding from comfort feeding by mouth |
| Dialysis | Terminal vs. recoverable context |
| Antibiotics | Life-threatening infection in terminal vs. treatable context |
| Hospitalization vs. comfort care | Preferred setting if terminally ill |
| Palliative sedation / pain control | Explicitly authorize even if may hasten death (doctrine of double effect) |

**Always include affirmative palliative care directive** — regardless of refusals, client must receive comfort care, including medication that may unintentionally hasten death.

Use the state's statutory definitions for "terminal condition," "permanent unconsciousness," etc.

**Pregnancy limitations**: Some states restrict withholding/withdrawing LST from pregnant patients. If client is of childbearing potential, verify state rules and flag for attorney. Some provisions are constitutionally contested.

### Step 6: Organ Donation & Post-Death Directives

- Align with Revised Uniform Anatomical Gift Act (RUAGA) as adopted in state
- Specify: transplant vs. research vs. education; any exclusions
- Reconcile with existing registry/driver's license designations (registry generally cannot be overridden by family)
- **Disposition of remains**: include only if state law permits in AHCD; many states require a separate document — if so, recommend separate Appointment of Agent to Control Disposition

### Step 7: Revocation, Severability & Provider Protection

- **Revocation**: Track state statute (oral, written, destruction, or expression to clinician); state client may revoke anytime while having capacity
- **Supersedes clause**: "This directive supersedes all prior directives" with current date; advise destroying prior originals
- **Provider reliance**: Copies/electronic versions have same effect as original per state law; providers may rely absent actual knowledge of revocation
- **Severability**: Invalid provisions do not void remainder
- **Conscientious objection**: If state allows provider refusal, require reasonable transfer efforts per statute

### Step 8: Execution Compliance

| Element | Requirements |
|---|---|
| Witnesses | Conform to state disqualification rules exactly — do not use generic language |
| Notary | Include if state accepts as alternative/supplement |
| SNF residents | Check for patient advocate/ombudsman requirements (e.g., Cal. Prob. Code § 4675) |
| Agent acceptance | Not always required but operationally useful — demonstrates agent understands role |
| Dating | Date every signature block |

**Capacity-challenge mitigation** (flag if client is elderly, hospitalized, or has cognitive diagnosis):
- Arrange contemporaneous physician capacity evaluation
- Use neutral witnesses who can testify to understanding
- Consider video-recorded execution (with consent, subject to privacy/ethics rules)

## State-Specific Variation Examples

| State | Key Variation | Citation |
|---|---|---|
| California | Notarization OR two witnesses; SNF requires patient advocate/ombudsman | Cal. Prob. Code § 4675, § 4701 [VERIFY] |
| Florida | Two witnesses required; one must not be spouse or blood relative | Fla. Stat. § 765.104 [VERIFY] |
| New York | Separate instruments (Health Care Proxy + Living Will); high evidentiary standard for LST withdrawal | [VERIFY] |
| Texas | Directive to Physicians; hospital may withdraw LST over family objection after ethics review + 10-day transfer period | Health & Safety Code § 166.046 [VERIFY] |

**Portability**: Many states honor out-of-state directives valid where executed, but provider acceptance is smoother with locally conforming forms. For multi-state clients, consider state-specific versions.

**POLST/MOLST**: Separate clinician order set — not a substitute for AHCD. When client's preferences involve DNR or comfort-only care, recommend POLST/MOLST discussion with attorney and clinician.

## Guidelines

- **Every jurisdiction-specific claim must be verified** against current statute with cited source or flagged `[VERIFY]`
- **Mandatory attorney review** before execution — include explicit notation that output is draft work product, not legal advice
- Screen for **undue influence** — confirm instructions reflect client's preferences, not proposed agent's
- **Never**: backdate, fabricate witnesses/notarization, override a known valid directive without declarant's consent
- Protect **confidentiality** of medical information throughout drafting workflow (Model Rule 1.6)
- If capacity is borderline, flag for attorney — document interaction in contemporaneous memo (Model Rule 1.14)
- Final document must be **scannable**: ER physician should identify agent and core instructions within 60 seconds
- Advise distribution: copies to agents, primary care physician, upload to patient portals