Making Sense of Living Wills and Other Advance Directives

Jack SchwartzAssistant Attorney General

January 29, 2008

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Risk of Future Incapacity Who’s to decide if I can’t? What’s to be done?

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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

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“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

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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

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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

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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?

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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?

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Talk by Itself Good, but is it enough? Memories can fade

Document as reminder Document can reassure

doctors

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Best: Talk + Advance Directives Don’t wait until too late Talk with family about

preferences Document decisions in a legally

valid way

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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

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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

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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

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Terminal Condition Incurable No recovery even with life-

sustaining treatment Death “imminent”

When’s “imminent”? Up to doctors

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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

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Persistent Vegetative State No evidence of awareness Only reflex activity, conditioned

response Wait “medically appropriate period

of time” for diagnosis

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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

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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

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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?

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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.”

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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

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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”