Advance directives tend to surface at the worst possible moment:
- a patient can’t consent
- family members disagree
- a crisis unfolds
- staff are unsure which instructions carry legal weight
Suddenly, what felt like a routine admission checkbox turns into a high-risk compliance issue.
For home health & hospice agencies, advance directives are not theoretical. They guide care when patients are most vulnerable and when agencies are under the greatest scrutiny.
*This article was written in consultation with Mariam Treystman.
At The Home Health Consultant, we work with Medicare-certified home health and hospice agencies on admission workflows, patient rights compliance, and survey readiness.
We’re writing this article to clarify how advance directives are supposed to work under federal rules. After reading, your agency will be able to build systems that protect patients and reduce regulatory risk.
What Does Medicare Mean by an “Advance Directive” in Home Health & Hospice?
An advance directive is a healthcare document created by a patient that explains how they want medical decisions handled if they become unable to advocate for themselves.
In home health & hospice care, advance directives exist to preserve patient autonomy when mental capacity declines or a medical crisis occurs. These documents allow patients to communicate their wishes in advance so that care teams can follow them later. Advanced directives eliminate guessing, stress on the patient’s family, delaying care, & risky informal decision-making.
From a Medicare perspective, advance directives are part of patient rights and must be addressed intentionally by home health & hospice agencies.
What Happens If a Home Health or Hospice Patient Cannot Provide Consent?
When a patient cannot consent due to dementia, coma, or other cognitive impairment, home health & hospice agencies must determine who has legal authority to make healthcare decisions.
If a patient has formally appointed a healthcare decision-maker through a legal process, that appointment must be honored. If no such appointment exists, agencies must defer to the closest living relative according to applicable laws.
*Important Note: Agencies cannot assume decision-making authority or bypass consent requirements, even when care feels urgent. This is why communicating what an advanced directive is to patients and their families is so important.
When Must Home Health & Hospice Agencies Discuss Advance Directives?
Advance directives fall under the Medicare Conditions of Participation related to patient rights. Home health & hospice agencies are required to provide information about advance directives, explain them, and ask whether one exists at the time of admission.
This requirement exists because patients cannot be admitted or treated without informed consent. When patients lose the ability to consent, advance directives tell the healthcare team how to proceed in a way that respects the patient’s previously stated wishes.
Failing to follow this process can result in conditional deficiencies and, in serious cases, violations of federal law.
The advance directive conversation must occur at admission.
The admitting clinician is responsible for explaining:
- What an advance directive is
- What types exist
- Whether participation is voluntary (it is)
- *Important Note: A home health or hospice agency cannot mandate that a patient has an advanced directive, but they must check to see if one exists.
When it comes to the explanation of advance directives, written materials alone are not sufficient. The explanation must be verbal as well, and understanding must be confirmed and documented.
*Important Note: This conversation is not optional and should never be delayed until a crisis occurs.
What Types of Advance Directives Do Home Health & Hospice Agencies Commonly See?
An advance directive doesn’t come in a single format. There are a couple different types of ways for patients and their families to set care preferences when a patient can no longer.
How Does a Living Will Apply in Home Health and Hospice?
A living will outlines a patient’s healthcare preferences if they cannot speak for themselves. These documents typically require the patient’s signature and either a witness or notarization.
When properly executed, living wills must be honored and incorporated into the patient’s plan of care. If informal or incomplete documents are discovered, they should still be escalated to the attending physician for review rather than ignored.
What Is a Durable Power of Attorney for Healthcare?
A durable power of attorney for healthcare designates a specific individual to make healthcare decisions if the patient becomes incapacitated.
These documents must clearly identify the decision-maker and meet legal execution requirements. Once obtained, home health & hospice agencies must ensure all care decisions align with this authority.
*For Hospice Only: What Is a POLST Form and Why Is It Critical?
A POLST (Physician Orders for Life-Sustaining Treatment) form is a medical order that outlines a patient’s preferences regarding life-sustaining interventions.
In hospice, POLST forms often address resuscitation, intubation, artificial breathing, and tube feeding. For example, a POLST form is where you would see a preference for DNR (do not resuscitate). Patients may choose full intervention, limited intervention, or comfort-focused care only.
These orders guide how hospice teams respond during medical emergencies and must be followed exactly as written.
What Exactly Must Home Health & Hospice Agencies Document About Advance Directives?
Advance directive compliance is not just about whether a document exists. Home health & hospice agencies must document that the discussion occurred, that it was voluntary, who was present, and that understanding was verbalized.
Time spent discussing advance directives should be documented similarly to other patient interactions, including start and end times when applicable. If a patient refuses to provide a copy of an advance directive or simply does not have one, that must also be documented.
What Happens After an Advance Directive Is Obtained?
Once an advance directive is received, home health & hospice agencies must coordinate it through the care system.
The document must be sent to the attending physician as part of medical orders, and the physician must acknowledge receipt and understanding. Advance directive instructions must then be reflected in the plan of care and included in the patient chart as an addendum.
Ignoring or sidelining this step creates a non-individualized plan of care, which is a conditional deficiency. So, it’s essential that an advance directive is included in the care plan.
Where Should Advance Directives Be Kept?
Advance directives must be accessible to everyone involved in care.
They should be:
- stored in the electronic medical record
- included as an addendum in the chart
- placed in the patient’s home folder
Home folder placement remains critical, especially when electronic access is unavailable during visits.
Are Advance Directives the Same as a Will?
Advance directives are not the same as a will. Advance directives are healthcare-specific documents. They do not address financial matters, property distribution, or inheritance.
Again, advance directives focus on how patients want to be treated medically if they cannot advocate for themselves.
Why Do Advance Directives Create Survey Risk for Home Health & Hospice Agencies?
Advance directives touch multiple high-risk areas:
- Consent
- Patient rights
- Physician orders
- Care planning
- Documentation
Survey issues often arise when agencies:
- Fail to explain directives verbally
- Do not obtain copies of the advance directive
- Neglect physician coordination
- Omit directive instructions from the plan of care
Each gap compounds risk and increases the likelihood of deficiencies during survey.
How Can Home Health and Hospice Agencies Stay Compliant with Advance Directive Requirements?
Advance directives require intentional systems, not assumptions.
Home health & hospice agencies need consistent admission workflows, clinician education, clear documentation standards, and physician coordination processes that ensure patient wishes are honored from admission through discharge.
Advance directives often intersect with another high-risk area: pain management and symptom control. Both are deeply tied to patient rights and individualized care planning. For your next read, check out our article on Complete Pain Assessments in Hospice.
If you need help preventing deficiencies tied to patient rights, admission documentation, or care planning, The Home Health Consultant can help. We work with agencies to evaluate their current processes and close compliance gaps before surveyors identify them.
If this sounds like the compliance solution you’re looking for, you can read more about our proven process below.
*Disclaimer: The content provided in this article is not intended to be, nor should it be construed as, legal, financial, or professional advice. No consultant-client relationship is established by engaging with this content. You should seek the advice of a qualified attorney, financial advisor, or other professional regarding any legal or business matters. The consultant assumes no liability for any actions taken based on the information provided.
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