January 23rd, 2013
Just as we create estate plans for our
eventual demise, we also need to plan ahead for the possibility that we will
become sick and unable to make our own medical decisions. Medical science has
created many miracles, among them the technology to keep patients alive longer,
sometimes indefinitely. As a result of many well-publicized "right to
die" cases, states have made it possible for individuals to give detailed
instructions regarding the kind of care they would like to receive should they
become terminally ill or are in a permanently unconscious state. These
instructions fall under the general category of "end-of-life care decision
making." Depending on the state in which you live, this may take the
form of a health care proxy, a medical directive, a living will, or a
combination of these.
The Health Care Proxy (Health Care Power of
Attorney)
If an individual becomes incapacitated, it is
important that someone have the legal authority to communicate that person's
wishes concerning medical treatment. Similar to a power of attorney, a health
care proxy allows an individual to appoint someone else to act as their agent,
but for medical, as opposed to financial, decisions. The health care proxy is a
document executed by a competent person (the principal) giving another person
(the agent) the authority to make health care decisions for the principal if he
or she is unable to communicate such decisions. By executing a health care
proxy, principals ensure that the instructions that they have given their agent
will be carried out. A health care proxy is especially important to have if an
individual and family members may disagree about treatment.
In general, a health care proxy takes effect
only when the principal requires medical treatment and a physician determines
that the principal is unable to communicate his or her wishes concerning
treatment. How this works exactly can depend on the laws of the particular
state and the terms of the health care proxy itself. If the principal later
becomes able to express his or her own wishes, he or she will be listened to
and the health care proxy will have no effect.
Appointing an Agent
Since the agent will have the authority to
make medical decisions in the event the principal is unable to make such
decisions for him- or herself, the agent should be a family member or friend
that the principal trusts to follow his or her instructions. Before executing a
health care proxy, the principal should talk to the person whom he or she wants
to name as the agent about the principal's wishes concerning medical decisions,
especially life-sustaining treatment.
Once the health care proxy is drawn up, the
agent should keep the original document. The principal should have a copy and
the principal's physician should keep a copy with that individual's medical
records.
Those interested in drawing up a health care
proxy document should contact an attorney who is skilled and experienced in
elder law matters. Many hospitals and nursing homes also provide forms, as do
some public agencies.
Medical Directives (Advance Directives)
Accompanying a health care proxy should be a
medical directive, also called an advance directive. Such directives provide
the agent with instructions on what type of care the principal would like. A
medical directive can be included in the health care proxy or it can be a
separate document. It may contain directions to refuse or remove life support
in the event the principal is in a coma or a vegetative state, or it may
provide instructions to use all efforts to keep the principal alive, no matter
what the circumstances. Medical directives can also be broader statements
granting general authority for all medical decisions that are important to the
principal. These broader medical directives give the agent guidance in less
serious situations.
With the strict new health care privacy rules
now in force, it’s more crucial than ever that everyone consider creating an
advance medical directive that specifically names those persons who are
entitled to access to health care information about them. Under the
privacy rules of the Health Insurance Portability and Accountability Act
(HIPAA), which became effective in April 2003, doctors, hospitals and other
health care providers may no longer freely discuss a patient’s status or health
with spouses or other family members — unless the providers have in hand signed
consent forms from the patient. Remember: a general power of attorney for
financial matters will not suffice. The instrument must refer specifically to
HIPAA.
For an article on state roadblocks that
prevent the wider use of advance directives, click here.
Living Wills
Living wills are documents that give
instructions regarding treatment if the individual becomes terminally ill or is
in a persistent vegetative state and is unable to communicate his or her own
instructions. The living will states under what conditions life-sustaining
treatment should be terminated. If an individual would like to avoid
life-sustaining treatment when it would be hopeless, he or she needs to draw up
a living will. Like a health care proxy, a living will takes effect only upon a
person's incapacity. Also, a living will is not set in stone; an individual can
always revoke it at a later date if he or she wishes to do so.
A living will, however, is not necessarily a
substitute for a health care proxy or broader medical directive. It simply
dictates the withdrawal of life support in instances of terminal illness,
coma or a vegetative state.
Also, do not confuse a living will with a
"do not resuscitate" order (DNR). A DNR says that if you are having a
medical emergency such as a heart attack or stroke, medical professionals may
not try to revive you. This is very different from a living will, which only
goes into effect if you are in a vegetative state. Everyone can benefit from a
living will, while DNRs are only for very elderly and/or frail patients for
whom it wouldn't make sense to administer CPR.
For more information on end-of-life
decision-making from the Mayo Clinic, click here.
POLST: A New Approach
Although advance directives or "living
wills" provide general guidance on what type of care a patient would like,
they are not consistently followed, in part because they don't give health care
professionals explicit instructions for making critical decisions about a
patient's care.
An alternative has emerged in recent years and
has been implemented or is being developed in 38 states: the Physician Orders for Life-Sustaining Treatment (POLST).
The POLST uses a standardized medical order form to indicate which types
of life-sustaining treatment a seriously ill patient wants or doesn't want if his or her condition
worsens. For details, click here.
https://www.elderlawanswers.com/end-of-life-care-decision-making-12045
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