Are Advance Directives Always Accepted?

Power of Attorney (PoA) documents and Living Wills are legally binding documents that should be followed in any healthcare setting. Yet, there are countless cases where family members find themselves facing challenge after challenge in getting their authority recognized.

Such issues add another layer of stress and complexity to the healthcare proxy role, especially when there are urgent decisions to be made. Some challenges may be easily resolved, while others are less simple and may result in wasting precious time.

Today, we’re digging into some of the issues that you could run into when presenting advance directives, plus how you can ensure everything goes smoothly.

While this article focuses on healthcare PoAs and Living Wills, many of the principles apply to other types of PoAs. Head to the end of the post if you want more details about financial PoAs, as these have a few interesting quirks.

Legitimate Reasons Your Paperwork Mightn’t Be Honored

You Don’t Have It On Hand

First, healthcare staff need to see and verify your documentation before they’re going to accept it. They can’t simply take your word for it, even if there’s an absolute emergency.

This is why it’s important to ensure your paperwork is available and that multiple people have copies, just in case.

It Isn’t Valid

Multiple factors can affect the validity of the document, including:

• It Wasn’t Witnessed/Notarized Correctly. There are normally specific requirements for how a document should be witnessed and/or notarized. These need to be followed precisely to create a legal document.
• The Witness/Notary Eligible Wasn’t Eligible. Some people won’t be eligible to act as a witness, such as the agent named in the PoA or the agent’s spouse. 
• It Doesn’t Contain the Correct Language. Some states may require specific language as part of a Living Will or PoA, while others may need you to cover particular points. Either way, if the required information isn’t in the document, it might not be valid.
• It Isn’t The Most Recent Version Validity of paperwork is partly determined by date. Notably, if there’s a newer PoA or Living Will, this is the active one, while the previous versions are considered to be revoked.
• The Paperwork Is Outdated. If the laws about what’s acceptable in your state have changed, then previously valid documentation might be out of date.
• The Paperwork Doesn’t Meet Local Requirements. Each state has its own requirements for Living Wills and PoA documents. If your document doesn’t match up to the requirements in your current state, it might not be accepted.

It’s crucial to check your local laws here, as rules for witnessing, notarizing, language, and other factors vary from one state to the next.

It Isn’t The Right Type of PoA

Power of Attorney documents aren’t one-size-fits-all. Instead, there are multiple types, each with their own area of focus.

As such, you need the right type of PoA for the role you’re trying to do. For example, an agent under a healthcare PoA won’t have any authority to help with financial decisions, while a financial PoA agent won’t be able to make healthcare decisions. 

The wording within the PoA can also influence what the agent is allowed to do. If you’re trying to do something outside the scope of the current PoA, you’re likely to get refused.

If you’re using a healthcare PoA, then you should have the authority to make healthcare decisions for the principal. Even so, you should carefully check the wording to see whether there are any unexpected restrictions.

It Hasn’t Come Into Effect Yet

Some PoAs come into effect as soon as they’re written, allowing the agent to act on the principal’s behalf while the principal still has capacity. This is helpful for times when the principal doesn’t have the energy to deal with paperwork or doesn’t trust their own judgment.

Other PoAs are springing and often come into effect when the principal loses the capacity to make their own decisions. So, if the PoA is springing, the agent has no authority until the principal’s physician rules that the principal has lost decision making capacity.

Living Wills are more straightforward – they come into effect when the principal loses capacity. They’re not really needed before then. Five Wishes follows this approach as well.

It Isn’t a Durable PoA

There are durable and non-durable PoAs. The non-durable ones stop being effective when the principal has lost decision making capacity, which isn’t all that helpful for healthcare decisions. As a result, most healthcare PoAs are durable instead.

Still, it’s worth checking, because in some states (like Arizona) PoAs aren’t durable by default. They’re only durable if specific language is used in the document.

The Document Is Being Challenged

You might have a PoA or Living Will that looks legitimate, but is being challenged by healthcare staff or family members. This can happen for multiple reasons, including:

• Concerns About Capacity. Advance directives are only valid when the principal has the capacity to make decisions. If a directive was signed when they lacked capacity, it could be invalidated later.
• Concerns About Duress. Similarly, an advance directive may not be valid if it was created under duress or as the result of manipulation.
• It Has Been Revoked. Only the most recent version of a PoA or Living Will is valid. Older versions have no legal standard and won’t be accepted.
• Family Members Are Disputing. Power of Attorney documentation can easily deepen family rifts and cause no end of problems. This can lead to some family members contesting the documentation, even if nothing is wrong with it.

If there are no problems with the documents, things should be fine in the end. Even so, the extra time can cause serious issues. It may even compromise your loved one’s health, especially if it takes days, weeks, or longer to get everything in place.

There Are Concerns About the Agent

There are surprisingly few requirements to be a PoA agent. Often, you just need to be not a minor and be mentally competent yourself. However, there may be additional requirements in some states or family members may argue that you don’t have the required competence.

Other Factors

There are also other reasons why an advance directive might not be accepted. Alternatively, the facility may accept the paperwork but not follow it as anticipated.

• The Document is Old. Advance directives are legally valid regardless of age, but some healthcare professionals might hesitate to accept old ones, especially if they think there may be newer versions out there.
• Staff are Unfamiliar with the Document. This is most common with uncommon online forms, but some family members have also found staff members not accepting the PoA part of Five Wishes because of unfamiliarity.
• The Scope is Misunderstood. Some details may be missed by staff members, especially if they’re under-experienced or if there’s a crisis.
• Administrative Errors. Information may also simply be recorded incorrectly, meaning that information in a PoA or Living Will mightn’t get passed on.
• Family Debates. Relatives may place pressure on healthcare staff, including with emotional appeals that attempt to sway judgment.
• Biases and Assumptions. Personal biases of staff members can sometimes impact decisions, including assumptions based on stereotyping. There may also be a strong focus on medical interventions, even when the individual does not want them.

Most of these factors come back to a single crucial point – healthcare staff are human. They make mistakes and they have their own opinions. We’re also talking about a busy and stressful environment, one where staff may sometimes be exhausted and close to burnout.

Complexities with Capacity

Capacity isn’t as straightforward as it sounds, partly because it isn’t all or nothing. Notably, a person might have the ability to make some healthcare decisions and not others.

There are also times when the principal doesn’t trust their own decision making, even though they technically have capacity.

For example, I read one forum thread where an elderly mother wanted her daughter to make healthcare decisions when she was having surgery, due to the effects of the surgery and medication.

Yet, despite a correct PoA and clear instructions from the mother, the request was ignored. The forum thread explained that the mother was effectively coached to give the answers the doctors wanted at the time, even though those answers didn’t match the mother’s true preferences.

Situations like this are more common than you might think.

With the correct PoA, the proxy and the principal both have the decision making authority in this situation. The principal retains ultimate authority, which is why healthcare staff often default to asking the principal – even when this isn’t what the family wishes.

If your family is in a situation like this, it’s crucial that the senior makes their position extremely clear. This way staff can be certain that there’s no duress or other issues at play. Sometimes you may even need to talk to someone responsible for patient rights and advocacy to get your loved one’s wishes followed.

How Do You Ensure Advance Directives Will Be Accepted?

While you can’t guarantee anything, there are some steps you can take to increase the odds that your paperwork is accepted.

• Use Well-Recognized Forms. Many states have an official form that healthcare staff will be familiar with. Such forms sometimes use challenging language, but they’re more likely to be recognized by staff members, which can help.
• Talk to Healthcare Staff Early. Everything goes much smoother when staff members know what to expect. You might even show them the paperwork you have and ask whether they anticipate any issues.
• Get The Proxy Involved Early. Even for a springing PoA, it’s helpful to have the healthcare proxy present during some discussions and decisions. This way healthcare staff are already familiar with them and the proxy has a decent amount of background to work with.
• Consult a Lawyer. Lawyers can be important too, especially if you have concerns about family drama. A lawyer will be able to provide advice about how to best protect your interests and highlight any potential issues in your paperwork. 

What Do You Do If An Advance Directive Isn’t Accepted?

Living Wills and PoA are both legal documents. Healthcare providers should accept and follow these as long as the paperwork meets the legal requirements of the state in question.

If things don’t go to plan, the first step is often to look for a patient advocate within the healthcare organization. There will often be someone with this type of role who can help you navigate the system.

Someone in your own family or social circle could also act as an advocate, especially if they have some background in the healthcare industry. Sometimes it’s enough to have someone else argue the case, as they’ll do so in a slightly different way to you.

You may also need to consult a lawyer. This is frustrating and expensive, but sometimes healthcare staff may not listen to anyone else.

Final Thoughts

Much of the time, Living Wills and Power of Attorney documents are accepted and followed without an issue. Unfortunately, there are always exceptions, including times when it’s difficult to make any headway. Often you simply need to keep trying and talking to people. Staff members are there to help your loved one and want to follow their wishes as much as possible. Because of this, many problems can be solved fairly quickly, even if it doesn’t seem like it at first.