Delegalizing advance directives – Facilitating advance care planning

Although many legal documents don’t require formal witnessing, notarization, or specific templates, most states’ advance-directive statutes require witnesses or a notary, and some stipulate use of a statutory form. Perhaps as a result, advance directives are commonly prepared in lawyers’ offices as part of estate planning and often closely adhere to templates offered in state statutes.

It may seem intuitive that such an important document would benefit from legal oversight and safeguards. However, just as it became clear more than four decades ago that advance directives couldn’t exert the same control over medical care as wills have over the disbursement of property, it now seems evident that the designation of advance directives as legal documents merits reconsideration. Given that existing laws create several impediments to successful advance care planning and do little to prevent disputes over the care provided, we believe that advance directives should instead be considered clinical documents.