LIVING WILL AND DURABLE POWER OF ATTORNEY
of Terms and Procedures
directive is a document in which an individual makes provision for future
medical treatment decisions in the event that he/she loses decisionmaking
type of advance directive is the living
will, which indicates what forms of medical treatment an individual wishes
to receive or forgo should he/she be terminally ill and lack decisionmaking
power of attorney for health care is a proxy directive in which an
individual designates someone (called the attorney
in fact or agent)
to make medical decisions on his/her behalf if he/she should lose
decisionmaking capacity. It is a different document than a power of attorney for
financial matters. A durable power of attorney for health care may include
stipulations about types of treatment that are/are not wanted in specified
the State of Iowa, both the living will and the durable power of attorney for
health care have the status of being legal
Each person has a right to make his/her
own health care decisions. In the
case of someone who does not have the capacity to make health care decisions, a
proxy decisionmaker may assume that responsibility. Thus it is permissible to
execute advance directives, as long as their stipulations are in conformity with
the teachings of the Catholic Church.
In particular, the Catholic moral
tradition recognizes that there are cases
in which it is morally permissible to forgo life-sustaining treatments. An
advance directive may legitimately be used as a means of legal protection for an
individual against the administration of life-sustaining treatments which are
not morally obligatory for him/her to use. It is not permissible, however, to use such documents as a means to
facilitate euthanasia or assisted suicide.
Sources of Policy
an address to an International Congress of Anesthesiologists on November 24,
1957, Pope Pius XII affirmed the right of an individual to make his/her own
health care decisions, and at the same time recognized proxy decisionmakers who
represent the patient:
The rights and duties of the doctor are correlative to those of the
patient. The doctor, in fact, has no separate or independent right where the
patient is concerned. In general he can take action only if the patient
explicitly or implicitly, directly or indirectly, gives him permission. ...The
rights and duties of the family depend in general
upon the presumed will of the unconscious patient if he is of age and "sui
Similarly, the Vatican Declaration
on Euthanasia (1980) states:
In numerous cases, the complexity of the situation can be such as
to cause doubts about the way ethical principles should be applied. In the final
analysis, it pertains to the conscience either of the sick person, or of those
qualified to speak in the sick person's name, or of the doctors, to decide, in
the light of moral obligations and of the various aspects of the case. (2)
Ethical and Religious Directives for
Catholic Health Care Services likewise affirms the prerogative of a patient
or his/her proxy decisionmaker to make health care decisions, provided that
their wishes are in conformity with the teaching of the Catholic Church:
free and informed health care decision of the person or the person's surrogate
to be followed so long as it does not contradict Catholic principles. (no. 28)
The free and
informed judgment made by a competent adult patient concerning the use or
withdrawal of life-sustaining procedures should always be respected and normally
complied with, unless it is contrary to Catholic moral teaching. (no. 59)
The Ethical and Religious
Directives for Catholic Health Care Services also makes explicit mention of
advance directives and of the content of the Durable Power of Attorney for
Health Care in particular, noting
the requirement that these documents be used to make decisions in conformity
with Catholic teaching:
compliance with federal law, a Catholic health care institution will make
available to patients information about their rights, under the laws of their
state, to make an advance directive for their medical treatment. The institution, however, will not honor an advance directive
that is contrary to Catholic teaching. (no. 24)
person may identify in advance a representative to make health care decisions as
his or her surrogate in the event that the person loses the capacity to make
health care decisions. Decisions by
the designed surrogate should be faithful to Catholic moral principles and to
the person's intentions and values, or if the person's intentions are unknown,
to the person's best interests. (no.
For presentation of the Catholic moral tradition on issues of death and
dying, see the entries GENERAL POLICY ON THE USE
OF LIFE-SUSTAINING TREATMENTS and EUTHANASIA AND ASSISTED SUICIDE,
Pius XII, Address to an International Congress of Anesthesiologists, November
24, 1957; reprinted in Russell E. Smith (ed.), Conserving
Human Life (Braintree, MA: Pope John Center, 1989).
Congregation for the Doctrine of the Faith, Declaration
on Euthanasia, IV (Washington,
DC: United States Catholic Conference, 1980).
National Conference of Catholic Bishops, Ethical
and Religious Directives for Catholic Health Care Services (Nov. 1994)
(Washington, DC: United States Catholic Conference, 1995).
first type of advance directive which was developed is the living will. As
revised in 1992 (1), the living will for Iowa states: "If I should have an
incurable or irreversible condition that will result either in death within a
relatively short period of time or a state of permanent unconsciousness from
which, to a reasonable degree of medical certainty, there can be no recovery, it
is my desire that my life not be prolonged by the administration of
life-sustaining procedures. If I am unable to participate in my health care
decisions, I direct my attending physician to withhold or withdraw
life-sustaining procedures that merely prolong the dying process and are not
necessary to my comfort or freedom from pain."
living will goes into effect only when two conditions hold: 1) the patient is terminally
ill and 2) the patient is no longer able to make
decisions about his/her health care (i.e., is incompetent).
According to the Iowa Code, a "terminal condition" is "an
incurable or irreversible condition that, without the administration of
life-sustaining procedures, will, in the opinion of the attending physician,
result in death within a relatively short period of time or a state of permanent
unconsciousness from which, to a reasonable degree of medical certainty, there
can be no recovery" (144A.2, subsection 8). A living will does not
go into effect when a patient is in an emergency situation from which he/she may
be expected to recover with proper treatment.
to the Iowa Code, a life sustaining
procedure is "any medical
procedure, treatment or intervention which meets both of the following
requirements: (a) Utilizes mechanical or artificial means to sustain, restore,
or supplant a spontaneous vital function; (b) when applied to a patient in a
terminal condition, would serve only to prolong the dying process."
(144A.2, subsection 5). This includes the provision of nutrition and hydration
only when they are provided intravenously or through a tube feeding. (144A.2,
subsection 5). "Life-sustaining procedure" does not include
"the administration of medication or performance of any medical procedure
deemed necessary to provide comfort care or to alleviate pain" (144A.2,
subsection 5) .
were enacted in Iowa's living will law during the spring of 1992 (viz., 74th
General Assembly, House File 2207). Formerly, artificial nutrition and hydration
and a state of permanent unconsciousness were not included in the scope of the
living will. The legislative changes
also placed restrictions on the witnesses for a living will document, and allow
a living will document to be notarized instead of witnessed. These changes
establish consistency between the procedure for executing a living will and the
procedure for executing a durable power of attorney for health care.
respect to living will documents executed prior to the 1992 legislative changes,
the following provisions hold:
A living will document executed prior to the current legislation remains valid,
but will be applied in accordance with the legal provisions in effect at the
time the document was executed. Thus, if a living will was previously executed
according to the "standard form" in use, artificial nutrition and
hydration and a state of permanent unconsciousness will still not be covered by
If a "non-standard" form was previously executed which included
provisions now part of Iowa's living will law (viz., regarding artificial
nutrition and hydration and/or a state of permanent unconsciousness), that
document will be applied in accordance with those provisions. (See Iowa Code
individuals who executed a living will document prior to the current legislative
changes have the option of revoking that document and signing the new living
should be noted that Iowa's Life-Sustaining
Procedures Act, which legally establishes a living will for the state,
contains an explicit disavowal of euthanasia: "This chapter shall not be
construed to condone, authorize or approve mercy killing or euthanasia or to
permit any affirmative or deliberative act or omission to end life other than to
permit the natural process of dying" (144A.11, 6).
Further the Act specifies that a living will declaration which has been
made by a woman now pregnant "shall not be in effect as long as the fetus
could develop to the point of live birth with continued application of
life-sustaining procedures" (144A.6, 2).
The same prohibition against the withholding or withdrawal of
life-sustaining treatments is explicitly applied to the case of a pregnant woman
who has never signed a living will (144A.7, 3).
Nevertheless, the protection legally accorded a fetus is not absolute, as
the following qualification is added to both of these stipulations:
"However, the provisions of this subsection do not impair any existing
rights or responsibilities that any person may have in regard to the withholding
or withdrawal of life-sustaining procedures" (144A.6, 2; 144A.7, 3).
The Durable Power of Attorney for Health
of limitations inherent in a living will, another form of advance directive has
been developed, namely, the durable power of attorney for health care.
language of a living will document gives only general directives about
life-sustaining treatments. When signing such a document, an individual cannot
foresee and take into account the specific and particular conditions which will
prevail when the use of life-sustaining treatments becomes an issue in his/her
own case. In order to provide for more nuanced decisionmaking, a durable power
of attorney for health care may be executed. By this document, an individual
legally designates someone to make treatment decisions on his/her behalf when
he/she is no longer competent to do so. The legally designated proxy (called the
attorney in fact or
represents the patient in the give-and-take of discussing medical
alternatives. The proxy should be someone who knows well the patient's values
and preferences, and who can make decisions as the patient would if he/she were
competent. The proxy may be a relative, but need not be.
the durable power of attorney for health care has been developed in a way that
is broader in scope than the living will. A durable power of attorney for health
care goes into effect in any situation in
which the patient becomes incapable of making treatment decisions;
in other words, it is not limited to cases of terminal illness. And
if a patient should later regain decisionmaking capacity, the power to make
medical treatment decisions reverts to the patient himself/herself.
legislation which established a durable power of attorney for health care in the
State of Iowa protects not only the right to refuse treatment but also the right
to request treatment: "This document gives my agent power to make health
care decisions on my behalf, including to consent, to refuse to consent, or to withdraw consent to the
provision of any care, treatment, service, or procedure to maintain, diagnose,
or treat a physical or mental condition" (144B.5, 1; italics added).
respect to the decisionmaking process of the legally designated proxy, the law
specifies that "In exercising the authority under the durable power of
attorney for health care, the attorney in
has a duty to act in accordance with the desires of the principal as expressed
in the durable power of attorney for health care or otherwise made known to the
attorney in fact at any time" (144B.6, 2). Further, the law provides that if the patient's "desires
are unknown, the attorney in fact has a duty to act in the best interests of the
principal" (144B.6, 2). These
stipulations are in accord with the principles for proxy decisionmaking set out
in the Ethical and Religious Directives
for Catholic Health Care Services. (2)
legislation establishing a durable power of attorney for health care for the
State of Iowa is likewise in accord with Catholic teaching in containing an
explicit disavowal of euthanasia: "This chapter shall not be construed to
condone, authorize, or approve any affirmative or deliberate act or omission
which would constitute mercy killing or euthanasia" (144B.12, 2).
It is important to keep in mind that a durable power of attorney for health care is a different legal document than a power of attorney for financial matters. The individual designated to take care of someone else's finances does not automatically have the power to make medical decisions for that individual. (3)
The Patient Self-Determination Act
legislation, called the Patient
has established requirements for healthcare providers with respect to
advance directives. These requirements apply to Medicare
providers (viz., hospitals,
skilled nursing facilities, home health agencies, hospice programs, Medicare
HMOs) and Medicaid providers (viz., hospitals, skilled nursing facilities, providers of home
healthcare or personal care services, hospice, HMOs). The provisions apply to all
adult individuals receiving medical care by or through the provider or
Patient Self-Determination Act sets
the following requirements for facilities covered by the Act:
information to each individual concerning an individual's rights under state
law (whether statutory or as recognized by the courts of the state) to make
decisions concerning medical care, including the right to accept or refuse
medical or surgical treatment and the right to formulate advance directives.
policies of the provider or organization respecting the implementation of
as to whether a person has an advance directive.
in the patient's medical record whether the individual has executed an
discrimination, that is, not to condition the provision of care or otherwise
discriminate against an individual based on whether the individual has executed
an advance directive.
with requirements of state laws respecting advance directives at facilities
of the provider or organization.
for education of staff and community
on issues concerning advance directives.
Patient Self-Determination Act also specifies the time at which the
aforementioned information must be provided:
--- in the case of a hospital, on an
--- in the case of a nursing care facility, on the resident's admission
in the case of a home health agency, before the client comes under the care of
--- in the case of hospice, when the patient receives initial
--- in the case of an eligible
organization (e.g., HMO), when the client enrolls;
law does not require a healthcare facility to agree to carry out any and
all directives of a patient when appropriately executed through a living will or
durable power of attorney for health care. No facility is required to act
contrary to its mission and ethical values, even when the patient/resident
requests this in writing. However, a facility must provide clearly written
policies which specify the limits on the procedures it will perform. A clear
summary of a facility's policies regarding advance directives and consent
to/refusal of medical treatment must be available to the public. (4)
Need for Advance Directives
most cases, when an individual becomes incapacitated to make his/her own medical
treatment decisions, these decisions can be made collaboratively by family
members and healthcare professionals without difficulties occurring. However,
there are cases where advance directives can be extremely helpful.
directives can be useful when conflicts arise among family members or between
family members and healthcare providers. In such instances, if a durable power
of attorney for health care has been executed, the designated agent legally has
the power to make the final decision and bring the conflict to resolution. The
statements contained in an advance directive can be taken as good evidence of an
individual's wishes regarding life-sustaining treatments. Executing advance
directives can prevent conflicts from going to court for resolution.
healthcare provider may be reluctant to withhold or withdraw life-sustaining
treatments for fear of being sued. However, if an advance directive has been
executed and the healthcare provider acts in accordance with it in not providing
life-sustaining treatments, the healthcare provider is legally protected. Thus,
advance directives can make healthcare providers more comfortable about
complying with requests to forgo life-sustaining treatments.
should be noted that the Patient
Self-Determination Act does not require anyone to execute advance
directives, but only requires that patients be informed that these documents are
available for use.
Executing Advance Directives
Forms and instructions for executing advance directives can be obtained from health care facilities or from attorneys. The Iowa Catholic Conference has developed a form for a durable power of attorney for health care; in the Archdiocese of Dubuque, this form may be obtained from the Archdiocesan office for health care. The Archdiocesan Medical-Moral Commission has also developed a form for the durable power of attorney for health care which places this document in a Christian faith context. A copy of this form, with accompanying instructions, is appended.
135.28-9 of the Iowa Code has created a State
Substitute Medical Decision-Making Board and allows counties to establish Local Substitute Medical
Decision-Making Boards. The
general role of the local board is to act as a substitute decision maker for
patients incapable of making their own medical care decisions and who
do not have another substitute decision maker available. In other words,
these boards are to act on behalf of individuals who are incapable of making
their own medical treatment decisions and who do not have an agent
designated through a durable power of attorney for health care, or a legal
guardian, or family members available, willing, and able to serve as proxy
See Iowa Code chapter 144A.
"Decisions by the designated surrogate should be faithful to Catholic moral
principles and to the person's intentions and values, or if the person's
intentions are unknown, to the person's best interests." National
Conference of Catholic Bishops, Ethical
and Religious Directives for Catholic Health Care Services (Nov. 1994)
(Washington, DC: United States Catholic Conference, 1995), no. 25.
The State of Iowa does have available a power of attorney through which the same
person can be designated to handle both finances and health care decisions for
another individual. It is important to keep in mind, however, that the power of
attorney for financial affairs alone does not give power to make health
Catholic Health Association, The Patient
Self-Determination Act An Educational Resource (St. Louis: Catholic Health
Association, 1991), pp. 5-6.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
CHRISTIAN AFFIRMATION OF LIFE
is a gift of God which I treasure and wish to live to the fullest. As a person
created by God and in God's image, I have dignity and value. My life has been
given to me as a sacred trust. I do not have absolute dominion over it but need
to take reasonable care of it.
a Christian, I believe that death is part of life, that through death life is
changed, not taken away, and that death need not be resisted by every possible
means. By not unduly prolonging life, I can attest to my belief in eternal life.
am free legally and morally to choose the course of treatment that is best for
me, taking into consideration the benefits to be gained, the burdens to me or to
others and the risks involved for each treatment.
I cannot foresee situations that may arise in regard to my health, I am choosing
an agent who knows me and who can speak on my behalf should I become incapable
of making my own decisions.
I, the Principal, hereby
(Type or Print)
my attorney in fact (my agent) and give to my agent the power to make health
care decisions for me. This power exists only when I am unable, in the judgment
of my attending physician, to make those health care decisions. The attorney in
fact must act consistently with my desires as stated in this document or
otherwise made known.
as otherwise specified in this document, this document gives my agent the power,
where otherwise consistent with the laws of the State of Iowa, to consent to my
physician not giving health care or stopping health care which is necessary to
keep me alive.
document gives my agent power to make health care decisions on my behalf,
including to consent, to refuse to consent, or to withdraw consent to any care,
treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition. This power is
subject to any statement of my desires and any limitations included in this
document. My agent has the right to examine my medical records and to consent to
disclosure of such records.
INSTRUCTIONS AND STATEMENT OF DESIRES
The Principal does not have to give any specific instructions or statement of
desires but may do so.
Insert here specific instructions or statement of desires of principal
(if any). Additional sheets may be attached.
DESIGNATION OF ALTERNATE HEALTH CARE AGENT
NOTE: The Principal may designate one
or more alternates as attorney in fact but does not have to do so.
If the person designated above is unable
or Print) Street Address
to serve as my attorney in fact.
this_________ day of_______________, 19____.
of Principal (Person Granting the Power of Attorney)
or Print Name of Principal
Power of Attorney must either be witnessed by two persons OR notarized.
OF IOWA, __________________________________County, ss:
this_____ day of_______________ , A.D. 19____. before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared
to me known to be the person named in and
who executed the foregoing instrument, and acknowledged that (he)(she) executed
the same as (his)(her) voluntary act and deed.
Notary Public in and for the said State
STATEMENT OF TWO WITNESSES
I know the principal personally and I
believe him or her to be of sound mind and at least 18 years of age. I believe
that his or her signing of this power of attorney is voluntary. I am at least 18
years of age. I am not a health care provider for the principal at this time
Signature of 1st Witness
Signature of 2nd Witness
Type or Print Name of Witness
Type or Print Name of Witness
Street Address Street
is a legal document. Although it can be completed without a lawyer, do not sign
it unless you clearly understand what it means. You may want to consult a lawyer
if you have any questions.
c 1991 Medical-Moral Commission
This form may be reprinted.
INFORMATION ON THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE
durable power of attorney for health care is subject to the provisions of
Chapter 144B of the Code of Iowa and reference should be made to that chapter.
The following is a summary of some of the provisions of Chapter 144B of the Code
of "Health Care" and "Health Care Provider"
attorney in fact (agent) has the power to make decisions about "health
care," meaning any care, treatment, service, or procedure to maintain,
diagnose, or treat an individual's physical or mental condition. This includes
the provision of nutrition or hydration only when they are provided
intravenously or through a tube feeding. "Health care provider" means
a person or health care facility licensed or certified to administer health care
in the ordinary course of business or practice of a profession.
Witnessing may be done in two ways:
Notary Public OR Two
a. The following individuals
shall not be witnesses for a durable power of attorney for health care:
1) A health care provider attending the principal (signer) on the date of the signing of this document.
2) An employee
of a health care provider attending the principal on the date of the signing
of this document.
3) The individual designated
in the durable power of attorney for health care as the attorney in fact (your agent).
individual who is less than eighteen
years of age.
b. One of the witnesses shall be an individual who is not a
relative of the principal by blood, marriage, or adoption within the third
degree of blood relationship.
3. Attorney in fact (the agent designated
as proxy decisionmaker)
following individuals shall not be designated as the attorney in fact (agent) to
make health care decisions under a durable power of attorney for health care:
a. A health care provider attending the principal (signer) on the date of
b. An employee of a health care provider attending the principal on the
date of signing unless the individual to be designated is related to the
principal by blood, marriage, or adoption within the third degree of blood
there is no legal requirement to do so, it is advisable for the principal to ask
the individual s/he wishes to designate as the attorney in fact (agent) about
his/her willingness to serve in this capacity before executing the
durable power of attorney for health care.
a. A durable power of attorney for health care may be revoked at any time
and in any manner by which the principal is able to communicate the intent to
revoke, without regard to mental or physical condition.
b. Revocation may be made by notifying the attorney in fact (agent)
orally or in writing. See also (d) below.
c. Revocation can also be made by notifying a health care provider orally
or in writing while that provider is engaged in providing health care to the
d. A revocation is only effective as to a health care provider upon its
communication to the provider by the principal or by another to whom the
principal has communicated revocation.
e. The health care provider is required to document the revocation in the
treatment records of the principal.
f. The principal is presumed to have the capacity to revoke a durable
power of attorney for health care.
g. Unless it provides otherwise, a valid durable power of attorney for
health care revokes any prior durable power of attorney for health care.
5. Prohibited Practices
a. A health care provider, health care service plan, insurer,
self-insured employee welfare benefit plan, or nonprofit hospital plan shall not
condition admission to a facility, or the providing of treatment, or insurance,
on the requirement that an individual execute a durable power of attorney for
b. A policy of life insurance shall not be legally impaired or
invalidated in any manner by the withholding or withdrawing of health care
pursuant to the direction of an attorney in fact appointed pursuant to this
is the responsibility of the principal to notify the health care provider of the
terms of the durable power of attorney for health care.
the document has been signed, it is advisable (although not legally required) to
notify the attorney in fact (agent) that the document has been executed.
REGARDING SPECIFIC INSTRUCTIONS AND STATEMENT OF DESIRES
this section of the form is optional. The principal may document in writing
wishes and instructions regarding medical treatments which will guide and
legally bind his/her agent.
of a general character may be included in this section of the document, such as
the following directives:
I want life-sustaining treatment provided only if the probable
benefits of treatment outweigh its anticipated pain, discomfort, or other
If I should have an incurable or irreversible condition that will
cause my death within a relatively short time, it is my desire that my life not
be prolonged by administration of life-sustaining procedures. In these
circumstances I want procedures withheld or withdrawn that merely prolong my
dying process and are not necessary to my comfort or freedom from pain.
addition, more specific instructions may be included regarding particular
procedures such as a Do Not Resuscitate order, intravenous or tube feeding, use
of a ventilator (breathing machine), dialysis, antibiotics, or the provision of
adequate pain medication (even if it has a secondary effect of hastening the
moment of death). The instructions given should be consistent with each other.
this section of the document the principal may make provision for organ
donation, or include stipulations of a specifically religious character (e.g.,
Health care decisions made on my behalf should be made in accordance with the
moral teachings of the Catholic Church; If at all possible, I wish to receive
the sacraments before my death).
executing a durable power of attorney for health care, an individual cannot
foresee and take into account all the specific and particular conditions which
may hold when the document takes effect. Thus it is prudent to leave room for
the agent to exercise his/her discretion about medical treatments. Written
instructions are appropriate if the principal has strong feelings about using or
forgoing particular treatments. Written instructions, whether general or
specific, may also be used as a way of assuring healthcare providers and others
that decisions likely to be made by the agent are in fact in accord with the
wishes and desires of the principal.
Suggestions after the Form is Properly Signed and Witnessed
would be well to place the original in a safe place known and accessible to
family members or close friends.
copies of the original to your physician, your agent and alternates, and family
with your physician and agent your values and wishes that can be used as
guidelines to fulfill your expectations as closely as possible.
This document is more comprehensive than a living will. While a living will becomes effective only when the principal is incapable of making health care decisions and is terminally ill, the durable power of attorney for health care becomes effective whenever the principal becomes incapacitated to make his/her own decisions.
Revised July 1992