Modern medicine can now keep a person alive in situations that, in years past, would have resulted in the individual’s death. Frequently, a patient in such a condition is unable to communicate his or her wishes with regard to the type of medical care to be provided. In the absence of any other guidance, the attending physician will typically use all available means to keep the individual alive, even when death is certain, with no hope of recovery.
However, many individuals feel that once death is inevitable, life should not be artificially prolonged through the use of such technology. The decision to start or withdraw such life- sustaining support, although always difficult, can be made easier with advance planning.
The term “advance health care directives” is commonly used to describe two key documents (sometimes combined into one) designed to address these end-of-life decisions:
- Living Will.
- Durable Power of Attorney for Health Care.
Individual state law governs the use of these documents, and such legislation can vary widely. Individuals who live in more than one state may need to execute a living will and a durable power of attorney for health care for each state.
A living will, also known as a “directive to physicians,” is a written statement of the individual’s health care wishes should he or she become seriously ill and unable to communicate. The document is designed to provide guidance to someone else appointed to make health care decisions for the individual, or to the attending physician if there is no health care agent. A living will might include:
- Directions as to pain medication.
- Directions as to when to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care, including cardiopulmonary resuscitation.
- A discussion of any religious beliefs that might impact medical treatment.
- Instructions for funeral and burial services.
Because it is impossible to foresee the future, the living will should be written in the broadest possible manner, to cover a wide range of situations.
Durable Power of Attorney for Health Care
In a durable power of attorney for health care, sometimes known as a “health care proxy,” an individual (the principal) appoints another person (the agent) to make health care decisions if the principal is in capable of doing so.1A durable power of attorney may employ a “springing” power, which means that the power “springs” into life when the principal becomes incapacitated.2 Additional powers granted to the agent could include:
- Access to medical records.
- Authority to transfer the principal to another facility or to another state.
- Ability to authorize a “Do Not Resuscitate” (DNR) order.
- Postmortem powers to dispose of the remains, to authorize an autopsy, or to donate all or part of the principal’s body for transplant, education, or research purposes.
- Talk about the issues: the individual should spend time talking with family, friends, clergy, and physician about his or her wishes in end-of-life decisions.
- Make the documents available: if a living will and/or a durable power of attorney exist, be sure that those involved know where to locate the documents.
1 Many states have provision in their laws for the appointment of a surrogate such as a spouse, domestic partner, or other close family member to make health care decisions for the principal, in situations where no durable power of attorney for health care exists.
2 Under the Health Insurance Portability and Accountability Act (HIPAA), a physician is prohibited from discussing a patient’s medical condition without the patient’s consent. Thus, if an individual becomes incapacitated, the person named as agent under a durable power of attorney for health care may not have access to the principal’s health-care information. Without this information, the agent would be unable to legally establish that the principal had become incapacitated, and would not be able to trigger any “springing” power. A HIPPA authorization can be used to give the agent access to the principal’s health-care information.
Revocation: an individual can generally revoke a living will or durable power of attorney at any time.
Non-profit organizations such as the following provide support and education on end-of-life issues:
National Hospice and Palliative Care Organization: (703) 837-1500; on the internet at: www.nhpco.org
Seek Professional Guidance
The counsel and guidance of legal, religious, and medical professionals is essential to the successful preparation of advance health care directives.