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Effective Planning for Health Care Decision-making at the End of Life Charles P. Sabatino Commission on Law and Aging Am

Effective Planning for Health Care Decision-making at the End of Life Charles P. Sabatino Commission on Law and Aging American Bar Association August 2006. These slides are available at: www.abanet.org/aging/cleconferencematerials.html. Outline P. 2.

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Effective Planning for Health Care Decision-making at the End of Life Charles P. Sabatino Commission on Law and Aging Am

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  1. Effective Planning for Health Care Decision-making at the End of Life Charles P. Sabatino Commission on Law and Aging American Bar Association August 2006 These slides are available at: www.abanet.org/aging/cleconferencematerials.html

  2. Outline P. 2 I. The Legislative Landscape of Surrogate Decision-making • Default Surrogate Laws • Health Care Advance Directives • Health Care DPAs • Living Wills • Mental Health Advance Directives • Out-of-Hospital DNR Laws • Organ Donation Laws • Guardianship Laws • Physician Assisted Suicide (Oregon) P. 4 - 5

  3. II. Why Ads Have Not Worked as Well as Hoped A great idea but: • Most people don’t do. • When they do, a standard form doesn’t provide much guidance. • When they name an agent, they seldom explain their wishes to agent. • Even if they do, health care providers usually don’t know about the directive. • Even if providers know directive exists, it isn’t in medical record. • Even if in the record, it isn’t consulted. P. 6

  4. Starting Point:What ADs Can’t Do P. 7 - 8 • Can’t provide cookbook directions. • Can’t change fact that dying is complicated. • Can’t eliminate personal ambivalence. • Can’t be a substitute for Discussion. • Can’t control health care providers.

  5. P. 8 What ADs Can Do • CAN be an important part of a developmental process of advance planning communication 2. CAN help you stop and think and DISCUSS. • Less about specific medical decisions, more about VALUES & PRIORITIES: What’s important to you in living? What conditions of living may outweigh the value of continued life? 3. CAN empower and give DIRECTION if reflective of the patient’s voice. • Not necessarily the legislature’s canned languange.

  6. P. 8 - 9 III. More Effective Advance Planning • Emphasize the process, not the transaction. * * * 4. Engage your client. Offer a workbook approach, e.g., see Lawyer’s Tool Kit for Health Care Advance Planning (www.abanet.org/aging) 5. Give priority to appointment of Proxy. 6. Stress periodic review of one’s wishes. 7. Have you done your own advance planning?

  7. Drafting Issues P. 9 Appendix • Basic legal requirements • Selecting an Agent • Who’s prohibited? • Criteria – Tool Kitfor Advance Health Care Planning • Co-Agents? • What is your duty to consultation/education? NEW: See Making Medical Decisions for Someone Else: A Maryland Handbook. Consider adapting a version for your state. www.abanet.org/aging

  8. P. 10 Drafting Issues 3. Agent’s Scope of Authority/Discretion • Be aware of statutory limits & post mortem authority (VA) • Be explicit • Maximum discretion? Do you want agent to be able to override written instructions, if any? See(Appellant) v. Maryland Dept. of Health & Mental Hygiene (February 25, 2002): www.dhmh.state.md.us/ohcq/download/alj.pdf

  9. Drafting Issues P. 11 Often overlooked– Authority to . . . • Make anatomical gifts, autopsy, disposition of remains • Contract for, hire, fire health care & support personnel • Direct care even if Pregnancy • Change domicile • Execute releases & waivers (the “carrot”) • Institute legal action (the “stick”). • Consent to experimental treatment • Delegate d-m during absence • Care for pets • Determine Visitation (especially important in Virginia) • Make mental health decisions Be sure to coordinate authority with Property DPA

  10. Drafting Issues P. 11 4. Effective Date: immediate or springing? 5. Determining D-M Capacity 6. Treatment Instructions? If you do include specific instructions… • Medical history is important • Focus on quality of life. What does that mean for client? Benefits & burdens are subjective. Consider Workbook approach, or “Values history” • Never say never, unless you really mean it. • Don’t overlook secondary illnesses P. 12 - 13

  11. . . Workbook example

  12. Drafting Issues P. 14 Other instructions: • Pain Control • Engage principal to greatest extent possible • Nominate Guardian • Perhaps designate primary physician • Eliminate unwanted surrogates • Anatomical Gifts • Carrots and sticks • Pregnancy • Pets • Personal/environmental/emotional. See Five Wishes at www.agingwithdignity.org

  13. www.AgingWithDignity.org

  14. Drafting Issues P. 14 - 15 Post-execution Logistics • An invisible AD = no AD • Still haven’t talked to physician or agent? • Wallet card • AD registries • e.g., AZ, CA, MD, MT, NC • USLivingWillRegistry.com • Docubank.com • Full Circle Registry: protectedlivingwill.com • NationalLivingWills.com • America Living Will Registry: ALWR.com • Driver’s License Notice?

  15. Drafting Issues P. 16 Provide a framework for review… When any of the 5 D’s occur: • You reach a new DECADE • You experience a DEATH of family or friend • You DIVORCE • You receive a new DIAGNOSIS • You have a significant DECLINE in your condition as measured by Activities of Daily Living (ADLs)

  16. P. 16 IV. HIPAA Issues Access to protected health information by… • Agent under health care DPA ? – Not a problem. • Putative agent under springing power ? Could be a problem. • Close family member ? – Could be a problem. www.hhs.gov/ocr/hipaa

  17. Process-Oriented Advance Planning Summary • Don’t do McDirectives • Your client probably can’t pay you enough to go through the process in depth, so give the client the tools to do the important part. • Value Worksheet • Thought-provoking exercises • Provide Different model ADs • Ensure client has talked to proxy & doctor • Help educate the agent/proxy • Periodic review – the 5 D’s.

  18. P. 18-19 V. POLST – Beyond ADs • Last 30 yrs: standardizing pt. communications ADs • Tipping Point: POLST Paradigm  standardizing • physicians EOL orders. Focus on here and now. • Oregon’s Physicians Orders for Life-Sustaining • Treatment – requires: • Doc to find out patient’s wishes re: CPR, care goals (comfort vs. treatment), antibiotics, N&H. • Translate into doctors orders on visually distinct (bright pink) med file cover sheet. • All providers ensure form travels with patient. www.POLST.org

  19. P. 20 - 22 VI. Resources • Selected Advance Directive Forms • Work Book Resources • General EOL Care Resources • Guidance for Proxies • Selected Bibliography

  20. We sometimes seem to act as though dying were solely the concern of the dying person. The fact is, we die, as we live, in a web of vital and complex relationships. -- Bruce Jennings, The Hasting Center

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