Lost in Translation

The Unintended Consequences of Advance Directive Law on Clinical Care

Each of the 50 states and the District of Columbia has adopted its own statutes governing advance directives that allow people to communicate their end-of-life wishes. Intended to safeguard patients’ rights, these laws may unintentionally prevent some patients—Latino, Native American, Asian, homeless, institutionalized, isolated elderly, disabled and non-English speaking—from making their preferences known or having them honored.

When researchers examined state statutes they found five areas that present barriers:

  1. Poor Readability—most statutes are written above the 12th-grade reading level, even though 40 percent of the population reads at or below the 8th-grade level.
  2. Health Care Agent—many states restrict who may serve as a health care agent, intending to protect patients from having practitioners or caseworkers serve as such but often not recognizing same-sex or domestic partners.
  3. Execution Requirement—witnesses or notaries often are needed to make advance directives legally binding.
  4. Inadequate Reciprocity—while most states honor advance directives from other states, they do not necessarily interpret the documents similarly.
  5. Religious, Cultural and Social Inadequacies—preferences outside a Western cultural bias are not permitted.

The researchers make recommendations for modifying advance directive laws to improve their clinical effectiveness and to shift the focus from a legal-transactional approach to a communications-based one.