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Overcoming the Balkanization of State Advance Directive Laws

Published online by Cambridge University Press:  01 January 2021

Charles P. Sabatino
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Abstract

State law requirements for health care advance directive documents were reviewed in every state and the District of Columbia to determine whether they are consistent and/or flexible enough to permit the utilization by the public of “universal” advance directive forms, specifically a health care power of attorney, that would be valid under every state's advance directive statutes. Such documents would have to overcome the wide variability of state legal formalities for validity. If this could be accomplished, the public would benefit from having a variety of multi-state or truly universal forms available that could be used with confidence in their validity.

The review found that a basic, multi-state health care power of attorney appears to be feasible in 41 States and the District of Columbia, compared to 36 states and the District in 2005. Only nine states prevent recognition of a truly universal form. Some barriers were surmountable, including differing agent and witness requirements, execution requirements, and effectiveness triggers. Other barriers were insurmountable, including mandatory forms, mandatory disclosures, and decision-specific language requirements. The strategies identified for overcoming some barriers can be used by lawyers in drafting true multi-state directives. More importantly, states should simplify state advance directive laws to facilitate a more meaningful communication model of advance care planning.

Type
Independent Articles
Information
Journal of Law, Medicine & Ethics , Volume 46 , Issue 4: Next Steps in Health Reform , Winter 2018 , pp. 978 - 987
Copyright
Copyright © American Society of Law, Medicine and Ethics 2018

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