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Making Sense of Living Wills and Other Advance Directives

Making Sense of Living Wills and Other Advance Directives . Jack Schwartz Assistant Attorney General January 29, 2008. Risk of Future Incapacity. Who’s to decide if I can’t? What’s to be done?. Approaches. Silence + assumptions “I’ll just leave it to my family to decide”

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Making Sense of Living Wills and Other Advance Directives

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  1. Making Sense of Living Wills and Other Advance Directives Jack Schwartz Assistant 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”

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