Article on State Requirements for Advance Directives

In 2002, the U.S. Department of Health and Human Services’s Centers for Medicare and Medicaid Services (“CMS”) published a booklet titled Own Your Future.¹ The title is telling as it reflects not only its content and CMS’s attempt to help the elderly plan for their futures, but also a fundamental value of American society.² Americans want to be autonomous and exercise control over their futures.³ This value permeates every area of American life, including decisions about health care.

Specifically, end-of-life care often presents the most critical of these medical decisions. To aid in making challenging end-of-life care decisions, advance directives offer individuals a concrete method for ensuring that end-of-life care agrees with their wishes. Yet, the majority of Americans have not taken advantage of advance directives and the opportunity to own their futures.⁴ This is the unfortunate reality despite federal and state advance directive legislation that has been in place since the early 1990s, despite an ever-aging population, despite imminent shortages in the supply of health care, and despite changes in the administration of the United States healthcare system.

Although advance directives are by no means a total cure for the difficult end-of-life discussions that families inevitably must face in the emergency room,⁵ advance directives can provide a means by which patients may effectively protect their interests. This Note challenges *170 states to act now to develop legislation that will encourage their residents to own their healthcare futures. While working together on a national level, states should create and implement uniform requirements and a national registry for advance directives.

This Note argues that states should do three things. First, states should reevaluate existing legislation for advance directives. Second, they should adopt uniform standards for durable powers of attorney, living wills, dispute resolution, and registration that apply to healthcare providers. Finally, states should include the disabled and elderly population in the legislative process.

Part I of this Note provides a survey of contrasting views on advance directives, a comparison of state advance directive legislation, and an overview of previous efforts to achieve uniformity among state advance directive laws. Part II discusses, first, how changes in population and in the national healthcare system may affect advance directives and end-of-life treatment, and second, how the inefficiencies of the status quo create problems with enforcing and honoring advance directives. Part III argues that a uniform approach to advance directives should be addressed on a state level. Part IV considers possible models for a uniform advance directive law. Finally, Part V summarizes why states must act now to reform advance directive legislation.