Lawrence P. Ulrich, Ph.D.
Kristina Rooker

1. What are the considerations under which an advance directive can be implemented?

The Colorado advance directive policy includes two documents.  The first, Medical Durable Power of Attorney for Healthcare, is implemented when a person can no longer speak for him/herself and make his/her own health care decisions.  The second, Colorado Declaration as to Medical or Surgical Treatment, is implemented upon the development of a terminal condition or a comatose state that persists for seven or more consecutive days and it becomes effective if death would occur without the use of life sustaining treatment.

2. In the case of conflicts which document overrides – the living will or the durable power of attorney?

It is recommended that both documents be completed, but the possibility of conflicts between the two documents is not addressed.

3. What is the authority of a living will; of a durable power of attorney, i.e., the attorney- in- fact?

The Medical Durable Power of Attorney for Healthcare appoints an agent to speak for a person whenever that person is unable to make his or her own medical decisions.  This agent has the power to consent to the giving, withholding or stopping of any health care, treatment, service or diagnostic procedure.  The Declaration for Medical or Surgical Treatment allows a person to state his or her wishes concerning their medical care in the event of a terminal condition or persistent comatose state and it allows the person to direct that upon one of these conditions his/her life not be artificially prolonged.

4. Can the physician (or healthcare facility) override an advance directive?

A physician or healthcare facility is only permitted to override an advance directive if the patient is pregnant and the fetus is viable or if it is determined that the person was not a competent adult when the advance directive documents were completed.

5. What is the definition of a terminal illness?

The existence of a terminal illness is to be determined by the person’s attending physician and one other physician that will certify in writing that the person has an injury, disease, or illness that is not curable or reversible.

6. How is the persistent vegetative state (permanent unconsciousness) considered in the advance directive legislation?

Persistent vegetative state is not specifically discussed in Colorado’s advance directive legislation, but the second triggering condition for the Declaration as to Medical or Surgical Treatment is described as a state of unconscious, comatose, or incompetence so as to make the person unable to make or communicate responsible decisions that persists for seven or more consecutive days.

7. Does the advance directive require/allow certain specific interventions or conditions to be addressed?

The document for Colorado’s Declaration as to Medical or Surgical Treatment contains a section entitled “other directions” in which a person can address specific interventions or conditions and the Medical Durable Power of Attorney for Healthcare includes  “statement of desires” and “special provisions and limitations” sections under which a person may include personal instructions.

8. Is artificially administered nutrition and hydration specifically addressed in the legislation?

Artificially administered nutrition and hydration are specifically addressed in Colorado’s advance directive legislation.  The Declaration allows someone to specifically direct that artificial nourishment be withdrawn or withheld and specify the time(s) when this should occur.

9. Is the possible pregnancy of the patient addressed in the legislation?

The possible pregnancy of the patient is addressed.  The legislation states that a pregnant patient’s Declaration will not be honored if it is determined that the fetus is viable and could develop to live birth if life sustaining procedures were continued.  This determination is to be made by the attending physician.

10. Is there a special form (or special language) required for the advance directive?

There are specific documents for both the Medical Durable Power of Attorney for Healthcare and the Declaration as to Medical or Surgical Treatment.  Colorado requires that persons completing these documents be competent adults.  Additionally, it is required that the Declaration and suggested that the Power of Attorney be witnessed by two adults who will attest to the fact that they personally know the person and believe him/her to be of sound mind and free of duress, fraud or undue influence.  The witnesses cannot have an interest in the person’s estate, cannot be a physician or employee of a physician or healthcare facility, and cannot be a patient in the persons treating healthcare facility.  If someone is not able to sign these documents themselves Colorado allows the person to direct someone else to sign in the patients presence.

11. Is a supplemental document expressing more specific or more extensive wishes of the patient allowed?

There are sections provided in both documents where specific wishes may be written in.

12. Are there any curious features about the state’s advance directive legislation?

The legislation points out that neither of these documents are effective in the event of a medical emergency because ambulance personnel are required to provide CPR unless they are given a separate order that provides otherwise.

Although Colorado law does not specify procedure for revocation of the medical durable power of attorney it may be revoked in the same manner that the Declaration for Medical or Surgical Treatment can be revoked.  Revocation can be done orally, in writing, or by burning, tearing, canceling, obliterating, or destroying the document.  In order for this revocation to be effective the persons physician must be notified.