Context:The legal tools of health care advance planning have substantially changed since their emergence in the mid-1970s. Thirty years of policy development, primarily at the state legislative level addressing surrogate decision making and advance directives, have resulted in a disjointed policy landscape, yet with important points of convergence evolving over time. An understanding of the evolution of advance care planning policy has important implications for policy at both the state and federal levels. Methods:This article is a longitudinal statutory and literature review of health care advance planning from its origins to the present. Findings:While considerable variability across the states still remains, changes in law and policy over time suggest a gradual paradigm shift from what is described as a "legal transactional approach" to a "communications approach," the most recent extension of which is the emergence of Physician Orders for Life-Sustaining Treatment, or POLST. The communications approach helps translate patients' goals into visible and portable medical orders. Conclusions:States are likely to continue gradually moving away from a legal transactional mode of advance planning toward a communications model, albeit with challenges to authentic and reliable communication that accurately translates patients' wishes into the care they receive. In the meantime, the states and their health care institutions will continue to serve as the primary laboratory for advance care planning policy and practice.

Background-Advance directive law may compromise the clinical effectiveness of advance directives.

Author presents the results of a survey of state emergency medical services do-not-resuscitate laws and protocols that have been implemented statewide and describes their structural and operational characteristics, as well as responses from key state contacts on program challenges and issues.

The Physician Orders for Life-Sustaining Treatment (POLST) Paradigm is designed to improve end-of-life care by converting patients' treatment preferences into medical orders that are transferable throughout the health care system. It was initially developed in Oregon, but is now implemented in multiple states with many others considering its use. An observational study was conducted in order to identify potential legal barriers to the implementation of a POLST Paradigm. Information was obtained from experts at state emergency medical services and long-term care organizations/agencies in combination with a review of relevant state law.

To ascertain the need for and to inform development of guidelines for voting in long-term care settings, we conducted a telephone survey of Philadelphia nursing (n = 31) and assisted living (n = 20) settings following the 2003 election. Substantial variability existed in procedures used for registration and voting, in staff attitudes, and in the estimated proportion of residents who voted (29%+/-28, range 0-100%). Residents who wanted to vote were unable to do so at nearly one-third of sites, largely due to procedural problems. Nearly two-thirds of facilities indicated they assessed residents' voting capacity before the election. However, methods differed and may have disenfranchised residents who were actually competent to vote. Current procedures in many facilities fail to protect voting rights. These data suggest that rights might be better protected if election officials took charge of registration, filing absentee ballot requests, ballot completion, and trained LTC facility staff on voters' rights and reasonable accommodations.

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As of December 1991, the Patient Self-Determination Act (PSDA) mandated that health care institutions which receive funding from Medicare or Medicaid provide written information about persons' rights to participate in medical decision-making and formulate advance directives. The PSDA required each state "...acting through a State agency, association, or other private nonprofit entity develop a written description of the law of the State (whether statutory or as recognized by the courts of the State) concerning advance directives that would be distributed by providers or organizations under the requirements of [the Act]." This mandate allowed each state considerable flexibility in its approach to the process of writing the state description and to its content. In 1990, the American Bar Association's Commission on Legal Problems of the Elderly prepared and distributed the Patient Self Determination Act: State Law Guide to assist each state in preparing its written description of state law. In follow-up to the distribution of this guide, we conducted a telephone survey with a representative from each state (including the District of Columbia) about each state's process for writing the state law description. This paper presents an evaluation of the process used by the states and of the documents they produced.

The appointment of a healthcare proxy is the most common way through which patients appoint a surrogate decision maker in anticipation of a future time in which they may lack the ability to make medical decisions themselves. In some situations, when a patient has not previously appointed a surrogate decision maker through an advance directive, the healthcare team may ask whether the patient, although lacking the capacity to make a healthcare decision, might still have the capacity to appoint a healthcare proxy. In this article the authors summarize the existing, albeit limited, legal and empirical basis for this capacity and propose a model for assessing capacity to appoint a healthcare proxy that incorporates clinical factors in the context of the risks and benefits specific to surrogate appointment under the law. In particular, it is important to weigh patients’ understanding and choice within the context of the risks and benefits of the medical and interpersonal factors. Questions to guide capacity assessment are provided for clinical use and refinement through future research.