At various times in this newsletter, we have advised individuals to obtain an advanced health care directive and health care power of attorney. Understandably, most people want their wishes to be known regarding end of life decisions and would not want these decisions placed in the hands of a third party. However, even the individual who signs such a document (the legal term is the “principal”) often does not have a clear understanding about how and when the form works. Moreover, in the estate planning process, estate planning attorneys probably spend less time working with and explaining these documents than they do any other estate document. This article sets forth the basics of how those directives work and how they fit into end of life decisions. We will examine the model living will form (from 2006) which the Pennsylvania legislature has provided. Use of this form is not mandatory, but it is the most complete form that we work with and it highlights the issues we are aware of.
The PA Model Form comes in three parts. The first part is an introductory explanatory section, second is the power of attorney, and third is the health care treatment instructions (often referred to as the “living will”).
Part I of the form explains that the two major objectives of the form are (i) to allow the principal to name a “health care agent” who will act on that person’s behalf and (ii) to give health care treatment instructions to that agent. Some of the basic points made in this explanation are that:
- The agent has the power to speak for the principal only when the principal is unable to speak for himself;
- The living will (the portion of the form that sets forth the principal’s health care instructions) cannot be followed unless the principal’s attending physician has determined that the principal cannot understand or make decisions by himself and that he is either permanently unconscious or has an end-stage medical condition;
- if the principal does not commit his wishes to writing, they may never be known when the crucial time comes;
- the principal should pick an agent that is trustworthy and who can be expected to be available in a health care crises; and
- the principal should circulate the completed form among his family, physician(s) and his agent.
Finally, the introduction goes on to explain in “Notes About the Use of this Form” that a living will is a flexible document, and the principal can tailor it to his or her own liking. The principal is advised that he can cross-out any language he does not agree with or that he can even draft his own form (although if he does this he is advised to consult with a physician and an attorney).
Part II — Power of Attorney
Part II of the Model Form is the “Durable Health Care Power of Attorney.” This section is where the principal appoints his agent. “Durable” here means that the power vested in the agent would outlast any loss of capacity and would be in effect until the principal’s death unless the principal revokes it.
The federal law HIPAA (the Health Insurance and Portability and Accountability Act of 1996) is touched on in this section. The principal’s health care agent is immediately able to obtain access to the principal’s medical records under the Model Form. There are many stories about family members who cannot access medical records of a loved one because of HIPAA. This form should remove that problem.
The remainder of Part II of the form sets forth general powers that the agent will have unless the principal directs otherwise. These are the power to:
- authorize, withhold, or withdraw medical care
- authorize, withhold or withdraw nutrition
- authorize admission to or discharge from a medical, nursing or residential facility
- authorize the hiring and firing of medical professionals
- authorize any legal action to require/not require a do not resuscitate order.
- treatment be given to relieve pain or provide comfort even if such treatment may shorten the principal’s life, be habit forming, or suppress breathing or appetite.
- all life prolonging procedures be withheld or withdrawn.
- the principal receive none of the following procedures: heart-lung resuscitation, mechanical breathing machine, dialysis, surgery, chemotherapy, radiation treatment and antibiotics.
- the principal will allow tube feeding?
- the individual wishes to donate his or her organs and tissues for the purpose of transplant, medical study or education?
- the instructions are mandatory or simply guidance for the agent?
The form provides for (and typically principals elect) an alternative health care agent in the event that the primary health care agent is unavailable.
Part III—Living Will
The third and final part of the Model Form (the “living will”) provides for specific instructions on types of treatment that the principal directs in the event that (1) he lacks the capacity to understand and communicate and (2) he is in an end-stage medical condition or is permanently unconscious. This part of the form provides for the most personal and controversial of the directions that the individual signing the document gives to his agent. It directs that:
In addition Part III also specifically presents the principal with three questions; whether:
The tube-feeding question is obviously one of personal preference, as is the question regarding whether the principal’s instructions are mandatory or for guidance (although the choice to make the instructions only guidance seems to undercut the purpose of the form). Finally, this form is the right place to make directions regarding the donation of organs and tissues. Sometimes this direction is found in general powers of attorney or even in wills, and by the time these forms are found it may be too late to act on this specific direction.
Why you should bother with this . . .
As the form says, “if you do not identify your wishes about your health care in advance . . . those wishes may not be honored because they may remain unknown to others.” This is bad for the principal, but failing to specify one’s wishes and even failing to specify an agent can be hard on the family members as well. Probably the worst case scenario is that of the Terry Schiavo situation, where family members with differing ideas prevent any sort of course of action for protracted periods of time. The decision then falls squarely on a judge, who has no knowledge of the patient or the patient’s attitude, preferences and wishes. It is difficult to believe that most people would want this outcome, and a health care declaration is ordinarily the means to prevent it.
– Rod Fluck