Post on 27-Mar-2015
Making Sense of Living Wills and Other Advance Directives
Jack SchwartzAssistant Attorney General
January 29, 2008
2
Risk of Future Incapacity Who’s to decide if I can’t? What’s to be done?
3
Approaches Silence + assumptions
“I’ll just leave it to my family to decide”
“They’ll know what to do” Talk but no documents Talk + advance directives
4
“I’ll Just Leave it to my Family to Decide” Law sets priority among
“surrogates” 1. guardian of the person (by court) 2. spouse 3. adult children 4. parents 5. adult siblings 6. other relatives or friends
5
Risks of Leaving Decision to Family Deciding in the dark is hard Risk of disagreement
Surrogates of equal rank have equal authority
Added burden, legacy of bitterness
6
Mr. Green 82 year-old widower, 3 children Former smoker, had end-stage lung
disease Also had worsening Alzheimer’s
disease, can’t make own health care decisions
Lived in nursing home 3 recent breathing crises
911 call, hospitalized, on then off ventilator
7
Mr. Green’s Prognosis Probable recurrent crises, back
and forth to hospital Death likely within several months
Six? Four? Two? Uncertain Nursing home wanted to know
Hospital transfer when it happens again?
Or, no transfer, no attempts at CPR?
8
Family Disagreement Elder daughter: “Dad was a fighter,
do everything to keep him alive.” Son and younger daughter: “Dad
wouldn’t have wanted this, and he’s suffering. It’s time to stop.”
What would Mr. Green want done? Who would Mr. Green want to
decide?
9
Talk by Itself Good, but is it enough? Memories can fade
Document as reminder Document can reassure
doctors
10
Best: Talk + Advance Directives Don’t wait until too late Talk with family about
preferences Document decisions in a legally
valid way
11
Types of Advance Directives Deciding who decides: naming
health care agent(s) AKA durable medical power of attorney
Not financial power of attorney
Deciding what’s to be done: living will Covers life-sustaining, maybe other,
treatments
12
Health Care Agents Selection, scope of authority up to
individual Agent to decide based on
“Wishes of the patient,” unless “unknown or unclear”
Then, “patient’s best interest” Ask your agent to read Proxy
Handbook
13
Living Will Follows “If … then …” model
“If I lose capacity and I’m in [specified conditions],
Then no CPR, ventilator, feeding tube, etc.” Or: aggressive interventions requested
Decision to forgo carried out if two physicians certify: Terminal condition End-stage condition Persistent vegetative state
14
Terminal Condition Incurable No recovery even with life-
sustaining treatment Death “imminent”
When’s “imminent”? Up to doctors
15
End-Stage Condition Progressive Irreversible
No effective treatment for underlying condition
Advanced to the point of complete physical dependency
Death not necessarily “imminent” Primarily advanced dementia, maybe other
diseases
16
Persistent Vegetative State No evidence of awareness Only reflex activity, conditioned
response Wait “medically appropriate period
of time” for diagnosis
17
Doing Both: Effect of Instructions on Agent Living will usually controls Why? Clear evidence of what
patient would want done Do you really want to bind your
agent? Living will can be made non-binding
guidance
18
Maryland Formalities Two witnesses
Notary not required Statutory form optional -- other
forms okay Out-of-state advance directives valid
here Maryland directive elsewhere?
Depends on that state’s law
19
Changing or Revoking an Advance Directive Presumed valid, no expiration New one on same topic revokes old Only patient may change/revoke
Family cannot Review it now and then
Agents still available? Contact information current? Care preferences the same?
20
Some Pitfalls Advance directive done secretly
“What? I’m his health care agent?” “I know that’s what it says, but she didn’t
understand.” Using ambiguous language
“No heroic measures.” Are you sure about a treatment decision?
Mexican proverb: “The appearance of the bull changes, once you enter the ring.”
21
Making It Work in the Real World Copies to family/friends, doctor
and hospital Wallet card or (soon?) Maryland
registry Want comfort measures in case
911 is called? Special order form (EMS/DNR Order)
needed from doctor
22
More Information: Attorney General’s Office Forms: call 410-576-7000 Forms and other information via the
Internet: www.oag.state.md.us Then click on “Advance Directives/Living Wills”
Much other material on Maryland law and policy www.oag.state.md.us Then click on “Health Policy”