As we age, we may lose the ability to make our own medical treatment decisions because of lack of capacity. As our population ages this is not uncommon: 50% of people over age 85, for example, are unable to do so. It is critical to have in place the legal documents that designate a trusted person to speak for us to make health care decisions based on the instructions and guidance we give them by signing advance directives. The commonly used advance directives include:
Health Care Proxy
Also called in some states a durable power of attorney for health care, the health care proxy (HCP) allows you to designate an agent in advance to make decisions on your behalf if you later become incapacitated. The agent is obligated to make the decisions you would have made, not what the agent believes is best for you. Only when your wishes are not known or cannot be determined can the agent make a “best interests” decision for you. Your agent is guided by the wishes you express in the second important advance directive – your Health Care Declaration, often referred to as a “living will,” and supplemented by conversations with the agent. The health care proxy is sometimes combined with a Health Care Declaration; it is our practice at Pierro, Connor & Strauss to combine the two tools in one “combined” instrument along with HIPAA release section.
Health Care Declaration (HCD)
Often referred to as a “Living will”. As noted, the Health Care Declaration states your desires concerning future medical care, specifying what procedures you want or don’t want. We use the expression health care directive because that’s a more descriptive term for what it is.
MOLST (Medical Order about Life Sustaining Treatment).
The MOLST is a form authorized by state law in several states, including New York, prepared by a physician working with the patient, usually prepared in a hospital setting for a patient who is terminally ill. It is a detailed form – almost a chart – of the patient’s wishes about very specific treatments and procedures. Because it is a physician’s order and is in the patient’s chart, it is more likely to be followed in the hospital setting and may in some cases minimize the issue of compliance with patient’s wishes, a serious issue that we will discuss later. The MOLST document, kept in the patient’s chart, does not replace the health care declaration or health care proxy but rather supplements them. It can also guide the health care agent’s decision if she or he is not sure of the maker’s wishes, just as the health care declaration does.
DNR Order (Do Not Resuscitate)
An order placed in a patient’s chart in the hospital directing no resuscitation if a heart stops functioning or breathing stops. The patient can sign a DNR order if he or she has capacity, or the health care agent may do so if not.
When do the health care proxy and health care directive become effective?
Answer: when you’re incapable of making or communicating your own health care decision; in other words, when you have lost the capacity to give “informed consent.” If you could speak for yourself, you wouldn’t need the advance directives. What is the definition of capacity? A person with capacity can understand the illness, the nature and benefits of the proposed treatment, and the risk in accepting or refusing it.
Several states impose restrictions on the use of living wills. In many states, the statutes say a living will may be used only if the patient has a “terminal condition;” in some states, death must be “imminent.” The wording of these statutes can make the effectiveness of a health care declaration less meaningful. For example, a person with advanced Alzheimer’s disease or totally incapacitated from a stroke might not be deemed “terminal” so that the health care declaration may not be deemed to be in effect. And the patient’s death may not be deemed “imminent.” Statutory language such as this is unfortunate and probably not binding. You have the right to refuse treatment through stating your wishes or through your health care directive, whether you are in a terminal condition and your death is “imminent” or not.
Must my wishes be honored? And if not, what do I do?
How serious is the problem of hospitals and physicians refusing to honor a patient’s wishes? Very serious. Patient wishes, even if there is a health care declaration, are not always honored. Having an agent acting under a HCP and advocating for your stated wishes may make a difference, but there will be situations where you receive unwanted treatment. A person with capacity can understand the illness, the nature and benefits of the proposed treatment, and the risk in accepting or refusing it.
Several states impose restrictions on the use of living will, which is different from standard will planning. In many states, the statutes say a living will may be used only if the patient has a “terminal condition;” in some states, death must be “imminent.” The wording of these statutes can make the effectiveness of a health care declaration less meaningful. For example, a person with advanced Alzheimer’s disease or totally incapacitated from a stroke might not be deemed “terminal” so that the health care declaration may not be deemed to be in effect. And the patient’s death may not be deemed “imminent.” Statutory language such as this is unfortunate and probably not binding.
Under the Cruzan decision, you have the right to refuse treatment through stating your wishes or through your health care directive, whether you are in a terminal condition and your death is “imminent” or not. Since New York does not have a living will law, there is no such legal limitation. But many living wills are badly drawn and include such wording – don’t sign such a form! And because you may at some time move to a state that imposes such restrictions, you should state in your living will that your wishes are to be binding “even if I am not in a terminal condition and even if my death is not imminent.” And do not include wording that you don’t want “heroic measures.” Be precise in the language you use. Is a heart transplant “heroic” or routine medical procedure today?
In most situations outlined here, we strongly recommend guidance from trusted legal counsel who understands the complexity and gravity of getting these documents right. Your life and final wishes may depend on it. Contact Pierro, Connor & Strauss for a free consultation today.
