Current legal status of advance directives in the United States

Abstract

Advance directive legislation has been in place throughout much of the United States for nearly 3 decades. The right to give an informed consent to or refusal of medical treatment has been recognized by state and federal courts, and that right has been determined to survive the loss of decisional capacity and may be exercised through the execution of instructional or proxy directives. Despite these developments, the percentage of the adult population with a formal advance directive of any type has never exceeded 15%. Moreover, a remarkable number of these directives are ambiguous and/or their existence is unknown to the physicians who are expected to rely upon them. Even unambiguous directives may not be followed at the critical stage in the trajectory of a patient's illness, and the accountability for such disregard by health care institutions or professionals is negligible to nonexistent. Nevertheless, there is real potential for advance directives, as a key element to sound advance care planning, to fulfill their initial promise as instruments of the prospective autonomy of patients. In order for that potential to be realized, primary care physicians must embrace advance care planning as a part of their professional responsibility to patients.