By: Joseph T. Buxton III, CELA*, Founder, TrustBuilders Law Group 

Most of us are familiar with the concept of a living will, now referred to as an advanced medical directive (AMD).  This is a document where you authorize someone to make medical decisions for you and to access your medical records.  In addition, it states your wishes on how you want to be treated in the event that you are in a persistent vegetative state with no possibility of recovery, or in a terminal situation.  This instrument is the result of a US supreme Court decision which ruled that individuals can dictate in writing how they want to be treated with respect to end-of-life decisions, but the Supreme Court was specific that unless you make your wishes known, the state may dictate how you are to be handled in the event there is a need for you to be maintained on life support. 

It is, therefore, very important that you express your wishes in writing and that they accurately reflect your desires.  An effective advance medical directive has three essential parts.  The first is the traditional living will that says to not hook you up to a machine if there is no possibility of my recovery.  Secondly, it contains a healthcare power of attorney wherein you authorize an individual or individuals to make healthcare decisions for you.  Finally, it includes a federal HIPPA privacy release, authorizing your agent under the AMD and other individuals to access your medical records and discuss your medical situation with your healthcare providers.

The Virginia General Assembly, effective July 1, 2009, modified Virginia’s law respecting advance medical directives.  The law now permits individuals to include provisions to authorize the agent to make healthcare decisions for you over your protest if you are suffering from Alzheimer’s disease or a similar type of dementia.  This power can be exercised whenever a physician and psychologist or second physician have certified that you are unable to make decisions because of a cognitive disability or mental illness.  This provision permits your agent to have you hospitalized up to a period of 10 days under these circumstances.

If you are unable to make a decision regarding your healthcare because of mental illness and you have not authorized your agent under your advanced medical directive to do so, then someone will need a court order to take care of those decisions over your protest. This means if you need to be transferred to assisted living because you can no longer take care of yourself in your home, someone will have to go to court and be appointed your legal guardian to make to make that decision for you.  However, this can be avoided if you update your medical directive and include those specific provisions authorizing your agent to make such decisions for you.  Under the new provisions, however, you will need to have a physician certify that you were competent to execute the medical directive at the time you sign your new medical directive.  In my office, we provide our clients with an addendum to be signed by the doctor indicating that they were competent. The addendum is then attached to the medical directive; this permits these provisions to become active. 

If you have not updated your medical directive, you should do so now and at the same time, I would recommend you also update your financial power of attorney since the Virginia law of powers of attorney was completely rewritten, effective July 1, 2010.


* Certified Elder Law Attorney by the National Elder Law Foundation