Health Care Advance Directives
You can use documents that give directions to others in case you become unable to make your own medical decisions. In most states there is one document that is called a Health Care Advance Directive and it includes a power of attorney for health care. In some states, the same information is separated into two documents: power of attorney for health care and living will. A living will often applies only to the very end of life and you do not choose a person to carry out your wishes. It is simply a document that states your wishes.
Health Care Powers of Attorney
A health care power of attorney is a written, witnessed document that gives authority to another person to act for you or to represent you in medical situations. The person granting the power is called the principal. The person exercising the power is the agent. A power of attorney for health care can take effect at the time you sign it, but most likely you will want it to take effect only when you decide it should or if a physician thinks you have lost the ability to make medical decisions.
It is very important for you to pick someone you trust and that you discuss what is important to you with that person. You also need to let the person know who your medical providers are, what treatments you do not want and if there is anyone in your family who might disagree with your wishes. You can include statements such as: “Should I be in an incurable or irreversible mental or physical condition, I direct my physician to withhold or withdraw treatment that merely prolongs my dying. I further direct that my treatment be limited to measures to keep me comfortable and to relieve pain.” Or, you could say, “I want everything possible done to keep me alive.”
If there is a medical crisis, the agent will need to be prepared to let people and medical providers know about the power of attorney and be ready to produce a copy. You need to give your doctor a copy of the power of attorney for health care. It’s a good idea to give a copy to at least two other people so they know what you want too. The health care power of attorney has advantages and disadvantages.
Advantages
• The powers delegated to the agent can be as broad or narrow as you want.
• Your family and friends hopefully know you and understand what is important to you, especially if you have talked with them about medical treatment.
• It is inexpensive to prepare and does not necessarily involve an attorney. Stationary stores may have forms or they can be found online.
• A power of attorney for health care may provide guidance to a court if a controversy develops or if a guardianship request is filed with the court.
• Appointing an agent will give you a voice in your health care in the future, when you otherwise may have no voice.
• The power of attorney for health care often will be honored even if a guardianship becomes necessary.
• Powers of attorney for health care can contain end-of-life decision-making directions.
Disadvantages
• No one supervises your agent.
• The power of attorney for health care may or may not be valid from one state to another.
• Often people don’t have advance directives, the document is not available in the medical record, or the directives don’t give the guidance the physicians need.
• People change over time. Medical treatments change. It is hard to anticipate in advance what will be needed.
Physician Orders for Life-Sustaining Treatment (POLST)
These are doctor orders for the treatments you want to receive at the very end of life. They are used when you already have a serious, progressive, chronic illness. You decide how much care you want and the doctor makes an order. This means that all health care providers are legally bound to follow the directions on the order. The order covers such things as treatments to get your heart and lungs started again if they stop, the amount of medical treatment you want including control of pain, and the use of feeding tubes. If you are not able to participate in making plans, the person who is your guardian or who you’ve chosen in your Health Care Power of Attorney can do it. You keep the original of the POLST and copies are kept in your medical records.
Advantages
• You can make the decisions about end of life treatment when you are already ill. The decisions needed are not in the future. They are in the present time.
• If you cannot make the decision, someone else can do it depending on your state law.
• This is a doctor’s order which means it is legally enforceable.
• Your doctor has clear instructions as to your wishes.
• Family and friends know what you want.
Disadvantages
• Not every state has a POLST law. Many are in the process of developing one.
• It might be hard to make these decisions when you are already ill.
Health Care or Family Consent Laws
Most states have laws that permit family members (or others who know the patient) to make health decisions for you even when you haven’t made any written plans. The laws have a priority list of people who can make medical decisions for you. If there is no guardian, family members come in order of relationship to you. A friend of yours may be at the end of the list in some states.
By law medical practitioners can provide emergency care and routine care to adults who cannot give informed consent. No decision-maker is needed. But major non-emergency medical care requires a decision-maker to consent to the treatment, such as surgery, medication, placement of feeding tubes, use of antibiotics, and breathing tubes. State laws differ as to what decisions family and friends can make. Usually these situations come up when someone is in a nursing home or a hospital. Some states have laws and procedures that deal with these situations but they are different in each state. Sometimes, when there is no one to make the decisions, doctors are left to decide what to do and they have to act according to the ethics of their profession.
Advantages
• No court proceeding is necessary.
• No prior documents need to be prepared.
• There is no cost to you or your family.
• You do not have to do anything.
Disadvantages
• Your wishes may not be known or taken into account.
• Decision-making is done by others who may or may not have your best interest at heart.
• The person called on to make decisions may be unprepared and not know what to do.
• Family members may disagree.
• The health care treatment decisions covered vary by state.
Single Court Transactions
Some states have laws that permit a judge to make a single financial decision or medical decision for you without a guardianship. Doctors at a hospital might ask the hospital attorney to officially request that a judge make the medical decisions if your family members cannot agree or are uncertain what to do for you, family members themselves can also officially ask a judge to make the medical decision.
An attorney may be appointed to represent your wishes depending on your state law. The judge then hears or reads the evidence about your situation including any statements you have made. Your personal history and values, to the extent that they are known, are taken into account. The judge makes the decision.
Advantages
• A judge’s order will settle dispute, at least legally.
• Your side of the story will be acknowledged and taken into account if it is known.
Disadvantages
• Most people are not familiar with courts.
• Court decisions can be seen as taking the power away from you or your loved ones.
• Attorneys are needed, and there is a cost involved.
• There may be delays in court proceedings.