Vermont

Health

Instrument: Advance directive

What is it for?
An advance directive is a document by which an adult (the “principal”) who is not presently incapacitated can give instructions for medical treatment in the future. Advance directive is the term now used in Vermont for documents that used to be called “living will” or “durable power of attorney for health care”.

What does it do?
With an advance directive the principal can appoint an “agent” and “alternate agent” to make her or his medical decisions in the future if she or he is found to be incapacitated . An advance directive can include information about the type of treatment the principal wants, including instructions regarding transfer from home, hospitalization, and specific treatments that the principal desires or rejects when being treated for a mental or physical condition or disability. These instructions may also cover life sustaining treatments. Vt. Stat. Ann. tit. 18, § 9702(a). Further, an advance directive may permit an agent to authorize or withhold treatment over the principal’s objection. Vt. Stat. Ann. tit. 18, § 9707(h).

Health care providers have an affirmative duty to attempt to determine whether a patient who lacks capacity has an advance directive in effect before treating the patient, except in cases of emergency. Vt. Stat. Ann. tit. 18, § 9707(a).

Agents for a principal determined by a clinician to lack capacity must make health care decisions for the principal by attempting to determine what the principal would have wanted under the circumstances. In doing so, the agent must consider the principal’s specific instructions contained in an advance directive; the principal’s wishes expressed to the agent, guardian, or health care provider, since or prior to the execution of an advance directive; and the agent’s knowledge of the principal’s values or religious or moral beliefs. Vt. Stat. Ann. tit. 18, § 9711(d).

A health care provider, health care facility, residential care facility, funeral director, crematory operator, or cemetery official, or an employee of any of them having actual knowledge of an advance directive or an instruction of the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing entity for failing to act in accordance with the advance directive. Vt. Stat. Ann. tit. 18, § 9714(a).

How does one make it?
The advance directive must be dated, executed by the principal (or by another individual in the principal’s presence at the principal’s express direction if the principal is physically unable to do so), and signed in the presence of two or more witnesses at least 18 years of age. Witnesses must both sign and affirm that the principal appeared to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed. Vt. Stat. Ann. tit. 18, § 9703.

Additionally, where an advance directive permits an agent to authorize or withhold treatment over the principal’s objection, the directive must also be signed by the agent accepting that authority. A clinician for the principal must also sign the provision permitting the agent to authorize or withhold treatment over the principal’s objection and affirm that the principal appeared to understand the benefits, risks, and alternatives to receiving health care over her or his objection. Finally, an ombudsman, a mental health patient representative, attorney licensed to practice law in this State, or the Probate Division of the Superior Court designee shall also sign a statement affirming that he or she has explained the nature and effect of the provision to the principal, and that the principal appeared to understand the explanation and be free from duress or undue influence. Vt. Stat. Ann. tit. 18, § 9707(h).

When does it come into effect?
An agent’s authority to make health care decisions generally enters into effect when the principal is determined to be “incapacitated” by the principal’s clinician. The clinician must both make reasonable efforts to speak with an “interested individual” and also make specific findings regarding the cause, nature, and projected duration of the principal’s lack of capacity. The clinician must also make reasonable efforts to notify the principal as well as the principal’s agent or guardian of the determination. Vt. Stat. Ann. tit. 18, § 9706(a). Any of the following individuals may also request a reexamination of the principal’s capacity: the principal, agent, guardian, ombudsman, a mental health patient representative, health care provider, or any interested individual, the principal’s clinician, another clinician, or a clinician’s designee. Vt. Stat. Ann. tit. 18, § 9706(c).

How long does it last?
Per Vt. Stat. Ann. tit. 18, 9711(c), the authority of an agent generally ceases to be effective when a clinician determines that the principal has recovered capacity. A principal can also choose to describe in the advance directive a condition or occurrence that ends the agent’s authority without such a determination. Vt. Stat. Ann. tit. 18, 9711(c)(2).

How does one end it?
A principal may end an advance directive by executing a new advance directive. The subsequent advance directive has the effect of automatically ending the prior instrument. Vt. Stat. Ann. tit. 18, 9704(a). Also, without executing a new advance directive, a principal many end one by either signing a statement that the principal revokes it, informing the principal’s clinician of the principal’s desire to revoke it, or destroying the instrument. Vt. Stat. Ann. tit. 18, 9704(b). Importantly, the principal need not have capacity at the time of revocation.

What does an example look like?
The Vermont Ethics Network has published various advance directive forms in English and Spanish here. This includes a form developed by Disability Rights Vermont.

What else should one know?
Vermont offers a registry for residents to submit their advance directives free of charge. The Vermont Advance Directive Registry is part of the national US Living Will Registry. It is a secure online database where Vermonters can submit copies of their completed advance directive forms to be accessed by authorized health care facilities and providers. For information on how to register, visit this site.

Last updated April 2021