Frequently Asked Questions about Advance Directives

Advance care planning is the process of thinking about, planning, and communicating preferences and priorities for your future health care needs. An advance directive is a legal document that is signed in the presence of two witnesses that allows you to designate a decision maker(s) and document your goals and values for future care and treatment.

There may come a time when you are seriously ill or injured and cannot make your own decisions about what kinds of treatments you would want under certain circumstances. Having discussion with family, friends and loved ones ahead of time about your values and wishes will help them to be able to speak on your behalf during a critical time. Advance directives are a gift of communication and an assurance that your wishes will be honored.

All adults 18 years of age or older who are capable of making their own decisions are encouraged to complete an advance directive for themselves.

A Living Will is an older document that was designed to address a situation where a person has a terminal condition and only wants care directed at their comfort and no extraordinary measures taken to prolong their life.

An advance directive is a more contemporary version of the older living will. Advance directives allow an individual to specify the care and treatment they would and would not find acceptable if they were unable to speak for themselves, regardless of whether their condition is terminal.

Yes, properly signed and witnessed advance directives are legally recognized in Vermont.

An advance directive is completed by an individual who is capable of making their own decisions. These are preference based documents that guide care and treatment in the future if the individual is not able to speak for themselves. Advance directives are not recognized by emergency first responders.

A DNR/COLST order is a medical order created through a shared decision making process between a clinician (MD, DO, APRN, PA) and a patient. These documents require informed consent, will guide the current treatment plan, and are legally recognized by all medical providers, including emergency first responders. Consent for a DNR/COLST can be provided by someone other than the patient if the patient lacks capacity.

A Durable Power of Attorney for Health Care and a health care agent are both terms to describe an individual who has been appointed by a person who has capacity to make health care decisions on their behalf in the event that they are not able.

Vermont’s Durable Power of Attorney for Health Care statute was repealed in 2005. If a Durable Power of Attorney for Health Care document was executed prior to 2005 and was in accordance with the law at that time, it is still valid.

If I live in another state but get my care in Vermont, what advance directive form should I be using?

You should use the advance directive form for the state in which you reside. To find the form for your state, click here.

In Vermont, there is no law that outlines who will make decisions for you if you lack capacity, do not have an advance directive, and do not have a medical guardian appointed through the courts.

Health care providers will seek out people with a known close relationship to you to try to determine what you would want in the situation. If no one knows what you would want, care will be provided that is in your best interest.

To access a list of regional contacts who are available to provide advance care planning support, please click here.

Completing an Advance Directive

In general, any preferences related to your future health care needs can be communicated in an advance directive. Many advance directives include information related to:

• The individual(s) who can and cannot not be involved in decision making
• Situations that you would and would not find acceptable
• Trade-offs that you would or would not be willing to make in order to have more time
• Trial courses of treatment to see if you will get better
• Invasive procedures that you may or may not want at the end of life, i.e. use of CPR, artificial feeding, breathing machines, etc.
• Organ and tissue donation
• Funeral or burial arrangements
• Spiritual or religious preferences

Anyone 18 years of age or older can serve as your agent, with the following exception, per Vermont statute 18 VSA § 9702(18)(c):

“The principal’s health care provider may not be the principal’s agent. Unless related to the principal by blood, marriage, civil union, or adoption, an agent may not be an owner, operator, employee, agent, or contractor of a residential care facility, a health care facility, or a correctional facility in which the principal resides at the time of execution of an advance directive.”

Vermont law allows for appointment of co-agents, as well as an alternate agent, in the event your agent is unavailable when a health care decision is required.

Any adult can witness an advance directive as long as they are not your health care agent, spouse, parents, siblings, children or grandchildren. A health care provider may serve as a witness.

In Vermont, an advance directive must be signed by you, the principle, and two adult witnesses. At this time, Vermont Act No.6 (S.117) ensures that any advance directive completed during between June 15, 2020 and June 30, 2022 and follows the remote witnessing procedure outlined below will be legally valid.

Remote Witnessing Procedure:

1. Identify 2 adults willing to serve as remote witnesses. Your remote witness must be someone you know. Your health care provider may serve as a witness.
2. Have your witnesses be on the phone or a video chat and tell them “by being my remote witness you are attesting to the fact that I, the principle, seemed to understand the nature and effect of the advance directive and was free from duress or undue influence at the time of signing”.
3. Sign and date your document.
4. Write each remote witness’ name, phone number, relationship to you (i.e. friend, neighbor, work colleague, etc.), and the date on the document.
5. In the witness signature line, write “verbal witness per COVID-19” if witnessed via telephone discussion, or write “video witness per COVID-19” if witnessed via video conferencing.

Please keep in mind that witnesses are attesting to your having signed the document in their presence, and the date of the witness signature (whether remote or in person) should match the date of your signature.

Note: If you created a document using remote witnesses between February 15, 2020 and June 15, 2020, you need to complete a replacement advance directive either with in-person witnesses (if it is safe to do so) or following the steps outlined above.

Who can be a witness to my advance directive?

Any adult can witness an advance directive as long as they are not your health care agent, spouse, parents, siblings, children or grandchildren. A health care provider may serve as a witness.

Yes, you can. For more information about organ donation and registering to become an organ donor, click here.

Can I authorize my agent to pursue Vermont’s law on physician assisted death in my advance directive once I no longer have capacity?

No, Vermont law requires that only individuals with decision making capacity can request medical aid in dying.

It can if you wish. Part Four of the Short Form Vermont Advance Directive allows you to share specific instructions about your funeral wishes and/or disposition of your remains.

After Completing an Advance Directive

It is recommended that you keep the original and that copies be given to your agent(s), any family/friends who you think would benefit from knowing your wishes, your doctor, the hospital where you receive your care, and the Vermont Advance Directive Registry.

(Please bear in mind that if you have never been a patient/received care at your local hospital, they will not have a way to store your document without first having established a medical record.)

A person can change their mind at any time about their treatment decisions. If your advance directive no longer reflects your current decisions, you should complete a new document. The most current advance directive will guide the care plan if you are unable to speak for yourself. If you update your advance directive, be sure to notify and provide updated copies to everyone who has old copies.

You make your own medical decisions as long as you are able to do so. In general, your agent’s authority begins when you lack the capacity to make your own decisions, as determined by a clinician.

A health care agent is obligated to make decisions by attempting to determine what the person would have wanted in that situation. To do this, they must consider the previously stated wishes, per their advance directive (to the degree that those apply), verbal statements (to the extent that they apply), and knowledge of their goals, values, religious and moral beliefs. They are not allowed to consider their own interests, values, wishes or beliefs when making decisions for someone else.

If you have a medical emergency outside of a hospital, the first responders are required to provide maximal treatment (unless you have a signed DNR/COLST order) until you can get to a hospital and are evaluated by a doctor. At the hospital, you, your advance directive, or health care agent can guide further decisions.

If you do not want CPR (cardiopulmonary resuscitation) performed on you for any reason, you should talk to your clinician about completing a DNR/COLST so that first responders who come to your home will be able to honor your preference.

VEN often receives questions relative to whether another state will honor a Vermont advance directive. Below is a quick guide to reciprocity information for other New England states:

• Connecticut: Considered valid as long as it was executed under the laws of another state in compliance with the laws of that state (provided they are not contrary to the public policy of Connecticut). Learn more.
• Maine: Considered valid as long as it was valid under the laws in the state where it was executed. Learn more.
• Massachusetts: Enforceable if executed in another state in compliance with the law of that state (provided that it is not contrary to the moral or religious views of the physician to carry out a treatment or to a formally adopted policy of a private facility that is expressly based on religious beliefs). Learn more.
• New Hampshire: Considered valid as long as it was valid under the laws in the state where it was executed. Learn more.
• Rhode Island: Considered valid as long as it was valid under the laws in the state where it was executed. Learn more.

Some states will not honor an advance directive of a patient who is pregnant and permanently ill or comatose. While Vermont has no such law, women capable of becoming pregnant should consider including instructions relating to pregnancy on their advance directives.

Still have questions? Contact us.

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