Living will requirements in Washington, DC

Which document this is

Washington, DC gives you two separate legal tools rather than one combined form. Your health care agent is named in the Durable Power of Attorney for Health Care, created by D.C. Code §§ 21-2201 to 21-2213. The person you name in it is your attorney in fact, the District’s own term, not agent or proxy. Your treatment wishes belong in a second, separate statute: the Declaration, created under the District’s Natural Death Act, D.C. Code §§ 7-621 to 7-630, a separate law that has nothing to do with the power-of-attorney statute.

There is one overlap worth knowing about. The Durable Power of Attorney for Health Care comes with an optional sample form, and that sample form has its own “Statement of Directives Concerning Life-Prolonging Care” section built in, so someone who signs only the power of attorney can still write treatment wishes onto the same page. Signing both documents, or using the power of attorney’s built-in directives section instead of a separate Declaration, are both valid choices under DC law.

This is the pairing Myend’s Healthcare Directive prepares for Washington, DC: a Declaration for your wishes, and a Durable Power of Attorney for Health Care for your attorney in fact, each signed the way its own statute requires.

Who can make one in Washington, DC

Both documents land on the same age. The Declaration’s own statute says it outright: any person 18 years of age or older may execute one. The Durable Power of Attorney for Health Care statute never states a number itself; it asks for “a competent adult,” and the District’s general age-of-majority law supplies the figure, 18.

Competence, for either document, is the ordinary practical standard. You understand what the paper does and you are not signing it under duress. Neither statute demands anything more formal than that.

Signing it so it counts

Washington, DC runs two separate signings, one for each document, and gives them the same core rule: two witnesses, and no notary on either one. Do not assume one document’s signing covers the other. Each statute stands on its own, and each needs its own witnesses.

The Durable Power of Attorney for Health Care

1. 1You sign and date it

   You sign and date the power of attorney yourself.

2. 2Two witnesses sign

   Two adult witnesses date and sign it as well, affirming that you were of sound mind and free from duress at the time of signing. The statute stops there, but the District’s own sample form has each witness declare that you signed or acknowledged the document in that witness’s presence, so signing it in front of both of them is the safe way to do it.

3. 3Who cannot witness

   Neither witness can be you, your health care provider, or an employee of your health care provider. At least one of the two also cannot be related to you by blood, marriage or adoption, and cannot be entitled to any part of your estate. The District’s own sample form goes a step further and has each witness state that they are not the person you named as your attorney in fact.

The Declaration

1. 1You sign and date it

   You sign and date the Declaration, or direct someone else to sign it for you, in your presence, if you are physically unable to sign it yourself.

2. 2Two witnesses watch you sign

   The statute puts it the other way round from most: the Declaration has to be signed in the presence of two or more witnesses, each at least 18 years old. So you sign in front of them, and they sign too. Notarization is not offered anywhere in the statute as a substitute.

3. 3Who cannot witness

   A witness cannot be: whoever signed the Declaration on your behalf, if you were physically unable to sign it; anyone related to you by blood, marriage or domestic partnership; anyone entitled to a share of your estate under the District’s intestate succession laws or under any will of yours or a codicil to it; anyone directly financially responsible for your medical care; or your attending physician, an employee of that physician, or an employee of the health facility in which you are a patient.

Naming your attorney in fact

The Durable Power of Attorney for Health Care is where you name your attorney in fact, Washington, DC’s term for the person who makes health care decisions for you once the document takes effect. The Declaration does not appoint anyone; it only states your own wishes.

The District bars one specific kind of self-dealing, in a section headed “Health-care provider limitation.” No health care provider may require you to sign a Durable Power of Attorney for Health Care as a condition of getting treatment or being admitted to a facility. The section then says that after you have spent at least 48 hours in a health care facility a provider may ask you to execute one, and closes with a flat sentence: the health care provider may not be named as the attorney in fact. That sentence carries no qualification of its own, but it sits inside the subsection about provider-solicited documents, so how far it reaches beyond that setting is not settled. The safe reading is the plain one: do not name a provider who is treating you.

Within that limit, your attorney in fact steps into the health care decisions you would otherwise make for yourself, for as long as the power of attorney is in effect. Two things it does not reach. Your attorney in fact has no authority over any decision you are still able to give or withhold informed consent on, so while you can speak for yourself you do. And on the Declaration side, your own desires as a qualified patient supersede the Declaration at all times.

When it takes effect

The Durable Power of Attorney for Health Care is effective upon, and only during, your incapacity. Incapacity has to be certified in writing by two licensed professionals, one physician and one qualified psychologist or psychiatrist, with at least one of them examining you within the day before signing the certification.

If you never name an attorney in fact, or your power of attorney has not yet taken effect, the District supplies its own order of decision-makers for your health care: a guardian or conservator first, then an intellectual-disability advocate, a spouse or domestic partner, an adult child, a parent, an adult sibling, a religious superior, a close friend, and finally the nearest relative, each deciding according to your known wishes or, where those are unknown, your best interest.

The Declaration runs on a different trigger. It becomes operative once you are a “qualified patient”: diagnosed and certified in writing to have a terminal condition by two physicians who have personally examined you, one of whom has to be your attending physician, with your attending physician also confirming that diagnosis to you and recording the conversation in your medical record. If you are unable to understand what you are being told, you become a qualified patient as soon as the written certification exists, without waiting on a conversation that cannot happen.

If you are pregnant

Washington, DC law says nothing about pregnancy. Neither the Durable Power of Attorney for Health Care statute nor the Declaration’s Natural Death Act sets out a pregnancy rule anywhere in its sections. That means both documents apply exactly as written, with no automatic suspension and no separate pregnancy clause to plan around.

Changing or cancelling it

You can revoke your Durable Power of Attorney for Health Care at any time. Tell your attorney in fact or your health care provider, out loud or in writing; the District presumes you are competent to revoke unless someone shows otherwise. Signing a later, valid power of attorney cancels only the earlier one’s health care powers, unless the new one says otherwise, and if your marriage or domestic partnership ends, your former spouse’s or partner’s authority ends with it automatically, though it returns if you remarry or re-register with the same person.

Your Declaration has its own, separate revocation rule. You can revoke it at any time, whatever your mental or physical condition, by destroying it yourself or having someone destroy it in your presence and at your direction, by signing and dating a written revocation, or by stating your intent out loud in front of a witness who is at least 18 and who signs and dates a writing confirming what you said. A written or spoken revocation takes effect once your attending physician is notified of it and records the time and date in your medical record.

Making sure it is found

Washington, DC does not appear to run a general registry for either the Durable Power of Attorney for Health Care or the Declaration. It does operate an electronic registry, but only for the separate medical-order form described below. Copies are your real safeguard here: give one of each document to your attorney in fact, your physician, and the hospital you are most likely to use, and tell your family where the signed originals are kept.

This is not a POLST

A POLST-style medical order is a different kind of document from either the Durable Power of Attorney for Health Care or the Declaration. Washington, DC’s version is generally known as MOST, Medical Orders for Scope of Treatment, with an electronic option called eMOST. A clinician signs a MOST form together with someone who is already facing serious illness, turning it into standing medical orders that travel with that person between hospital, nursing facility, home and ambulance. Your Durable Power of Attorney for Health Care and your Declaration work differently: you put them in place in advance, for a future you cannot yet see, and no clinician has to sign either one. Myend prepares the Durable Power of Attorney for Health Care and the Declaration. It does not, and cannot, produce a MOST form, because that has to come from a treating clinician.

What is different about Washington, DC

Two witnesses on each document, no notary on either, and two different lists of who is disqualified from being one of them.

The Durable Power of Attorney for Health Care and the Declaration come from separate acts, in separate titles of the D.C. Code, and each writes its own witness rule. The counts match, two and two, and neither act mentions a notary anywhere, so the number is the easy part. The lists are where they diverge. On the power of attorney, the relationship test reaches only one of your two witnesses: at least one must not be related to you by blood, marriage or adoption and must not be entitled to any part of your estate. On the Declaration, the bar applies to both witnesses and it is longer: nobody related to you by blood, marriage or domestic partnership, nobody who inherits from you under intestate succession or under your will, nobody directly financially responsible for your medical care, and not your attending physician, that physician’s employee, or an employee of the facility where you are a patient. A witness who is fine on one document can be disqualified on the other.

The Declaration carries one condition the power of attorney does not. Sign it while you are already a patient in an intermediate care or skilled care facility, and one of your two witnesses has to be a patient advocate or ombudsman, or the Declaration has no effect. The power of attorney carries a bar of its own, written into the section on provider-solicited documents: a health care provider may not be named as the attorney in fact.

Both statutes are silent on pregnancy, and Washington, DC runs an electronic registry, eMOST, for its medical-order form specifically, even though neither of your two advance planning documents has a registry of its own.

Common questions

Sources and review