A Vermont Advance Directive lets you make your health care preferences known to medical personnel in the event you can’t express those preferences (like in a medical emergency where you’re unconscious).
In addition to functioning as written instructions, your advance directive also lets you assign an agent. This agent is tasked with making medical decisions in your best interests, so make sure your agent is someone you trust before having them sign your advance directive.
1. What is a Vermont Advance Directive?
A Vermont Advance Directive — also known as Clinician Orders for Life-Sustaining Treatment (COLST) — is a combination of two estate planning documents, a Medical Power of Attorney and a Living Will. As defined by 18 V.S.A § 9701-1, this document allows you to outline your healthcare and post-death preferences regarding:
- Appointment of a healthcare agent
- Identification of a preferred primary care clinician
- Healthcare desires or treatment goals
- Anatomical gift donation, disposition of remains, funeral goods and services
Your advance directive will come into effect in the event you suffer an illness or injury that leaves you incapacitated. At this time, your agent will ensure your medical wishes are followed, as well as make healthcare decisions not covered in your document.
You’re likely to encounter the following terms, as defined by 18 V.S.A § 9701, when you begin drafting your Vermont Advance Directive:
- Agent: An adult with mental capacity who is authorized by your advance directive to make medical decisions on your behalf.
- Capacity: Your ability to make or communicate decisions.
- Clinician: A medical doctor, osteopathic physician, advanced practice registered nurse, or physician assistant licensed to practice and/or pursuant to 26 V.S.A.
- Clinician Orders for Life-Sustaining Treatment (COLST): An order/s made by a clinician for treatment such as mechanical ventilation, intubation, antibiotics, transfer to a hospital, artificially administered nutrition, or other medical interventions designed to extend the patient’s life, but not to provide a permanent cure. A COLST order may include a DNR order that meets the requirements of section 9708.
- Do-Not-Resuscitate Order (DNR): A written order from your physician that directs healthcare providers to not attempt to resuscitate you.
- DNR Identification: A bracelet, necklace, or anklet identifying you as an individual who has a completed DNR Order.
It’s important to note that in Vermont, an Advance Directive may also be referred to as:
- Clinician Orders for Life-Sustaining Treatment (COLST)
- Advance Health Care Directive
- Medical Power of Attorney
2. Who Should Have a Vermont Advance Directive?
Most people are motivated to create an advance directive following momentous life events such as:
- A Milestone birthday
- Retirement
- Birth of a child
- Birth of a grandchild
- Marriage
- Divorce
- Death of a loved one
- Diagnosis of an illness
However, you don’t need to wait for a health concern or life event to spur you into action. The best time to take control of your medical future is today.
In reality, every Vermont resident with capacity over the age of 18 can draft a Vermont Advance Directive, and are legally entitled to do so in accordance with 18 V.S.A. § 9703(a).
Tragedy can strike at any time. Having an advance directive will protect you and your loved ones from stress, disputes, uncertainty, and even potential legal hassle.
3. How to Select Your Agent(s)
According to 18 V.S.A. § 9702-1, you’re able to appoint one or more agents to direct your healthcare in the event you become incapacitated and unable to do so yourself.
While a specific person may immediately come to mind for this important role, it’s worth taking an in-depth look at your options before coming to a final decision. As you consider your options, keep these essential factors in mind:
- What does your prospective agent believe about end-of-life care? Is your agent willing to follow your instructions regarding life-sustaining treatments and end-of-life care? Although you don’t need to share the same beliefs as your agent, a general consensus likely means your agent will execute your directive in the way you’d find most agreeable. Can your agent be trusted to not act in his or her own self-interest? Your agent should be committed to your wellbeing, even if executing your advance directive goes against his or her best interests.
- Is your agent emotionally mature? Your agent must be mature enough to handle the weight of making difficult healthcare decisions for a loved one.
As stated in 18 V.S.A. § 9702, after deciding who you want to appoint as your agent(s), you should affirm that you’ve notified them and that they accept their designation. You should also provide them a copy of your advance directive to ensure they’re able to verify their legal authority as your agent in a time of crisis.
Can You Appoint Additional Agents?
According to 18 V.S.A. § 9702-1, in addition to your primary agent(s), you’re permitted to designate one or more alternate agents.
Your alternate agent will assume authority over your healthcare in the event your primary agent(s) are unwilling to, or incapable of carrying out their role.
Who Can’t be Your Agent?
As stated in 18 V.S.A. § 9702-18(c), your healthcare provider is unable to act as your agent unless they’re related to you by blood, marriage, civil union, or adoption.
Furthermore, your agent may not be an owner, operator, employee, agent, or contractor of a residential care facility, a healthcare facility, or a correctional facility in which you’re a resident at the time you execute your advance directive.
4. Which Decisions Can Your Agent Make on Your Behalf?
According to 18 V.S.A. § 9711(a), your agent shall have the authority to make any health care decisions on your behalf – specifically, ones you could have made if you had capacity.
Note that you are also able to provide instructions on your advance directive that limit your agent’s decision-making power, and your agent must follow any instructions you’ve provided in your directive.
Furthermore, your agent is obliged to consider their knowledge of your personal, religious, and moral beliefs. If unable to determine what you would have wanted in a particular circumstance, your agent shall make a decision through an assessment of your best interests.
If no instructions are provided, your agent has the authority to:
- Admit you to or discharge you from a medical facility or nursing home
- Access information regarding your mental and physical health, including your medical and hospital records
- Consent to the disclosure of your healthcare information
- Approve the use of medication, procedures, or therapeutic measures
- Participate in any meetings, discussions, or conferences concerning your healthcare decisions
- File a complaint on your behalf regarding a healthcare provider, healthcare facility, or residential care facility
In addition to medical decisions, your Vermont Advance Directive allows you to detail your post-death wishes. This portion of the document highlights your preferences regarding organ donation, disposition of your remains, as well as funeral goods and services to be provided. If no directions are supplied, your agent will have authority to make these decisions on your behalf.
For more information, the authority and obligations of your agent(s) are clearly defined in 18 V.S.A § 9711.
What Decisions is Your Agent Unable to Make?
According to 18 V.S.A. § 9711(f), your agent does not have the authority to consent to voluntary sterilization.
When Does Your Agent Obtain Authority Over Your Care?
According to 18 V.S.A. § 9706, your advance directive goes into effect when your clinician determines that you lack capacity, and makes specific findings regarding the cause, nature, and projected duration that you will lack of capacity.
Additionally, your clinician must make reasonable efforts to inform both you and your agent of their conclusion that you lack capacity.
5. What to do if You Change Your Mind
Although legally-binding, your Vermont Advance Directive is not permanent. As stated in 18 V.S.A. § 9704, regardless of your mental capacity, you’re able to suspend or revoke all or part of your advance directive, including the designation of an agent by:
- Signing a statement suspending or revoking all or part of your document.
- Personally informing your clinician of your intention to suspend or revoke.
- Burning, shredding, or otherwise obliterating the original form.
- Annulment, divorce, dissolution of civil union, order for relief from abuse, or legal separation from a spouse acting as your agent.
Additionally, if you have mental capacity, you’re able to amend, suspend, or revoke all or part of your advance directive by executing a new advance directive pursuant to 18 V.S.A. § 9703.
6. How to Complete Your Vermont Advance Directive
Once you’ve selected your agent and outlined your wishes in your Vermont Advance Directive, it’s time to make the document official.
Pursuant to 18 V.S.A. § 9703, your advance directive must be signed in the presence of two witnesses at least 18 years of age. In addition to signing the document themselves, the witnesses shall affirm that you understand the content of the document, and that you’re free from duress or undue influence at the time you signed the document.
Conforming to 18 V.S.A. § 9703, the following individuals cannot act as witnesses:
- The agent(s) or successor agent(s) outlined in your advance directive
- Your spouse
- Your children or grandchildren
- Your sibling(s)
- Your parent(s)
In Vermont, your healthcare provider is permitted to act as a witness on your advance directive.
Additional restrictions apply if you reside in a nursing home (as defined in 33 V.S.A. § 7102) at the time you execute your advance directive. Your document will not be effective unless one of the following individuals explains the nature of the document to you, and signs a statement affirming that they provided the explanation:
- An ombudsman
- A recognized clergy member
- An attorney licensed to practice in Virginia
- Non-compensated nursing home volunteers
- A clinician that does not work at the facility in which you reside
- A mental health patient representative
- A probate division of the Superior Court designee
- An individual designated by a hospital pursuant to 18 V.S.A. 9709(d)
Any of these individuals are permitted to serve as one of the witnesses to the execution of your advance directive.
An Advance Directive is paramount if you wish to ensure your future healthcare wishes are advocated for and followed. Don’t wait until it’s too late, create your Virginia Advance Directive today.