Making Sense of Living Wills and Other Advance
- Slides: 21
Making Sense of Living Wills and Other Advance Directives Jack Schwartz Assistant Attorney General April 2008
What’s the Issue? n ~ 1. 5 million hospital and nursing home deaths annually n n n > 30, 000 in Maryland Most after a chronic illness Most after a decision about medical interventions 2
Risk of Future Incapacity Who’s to decide if I can’t? n What’s to be done? n 3
Common Approach: Silence + Assumptions n n “I’ll just leave it to my family to decide” “They’ll know what to do” 4
“I’ll Just Leave it to my Family to Decide” n Law sets priority among “surrogates” n n 1. Guardian of the person (by court) 2. Spouse n n n 3. 4. 5. 6. As of July 1: also “domestic partner” Adult children Parents Adult siblings Other relatives or friends 5
“They’ll Know What to Do” Will they? n Deciding in the dark is hard n Risk of disagreement n n n Surrogates of equal rank have equal authority Added burden, legacy of bitterness 6
Case Study: A Patient Without Capacity – Mr. Green n n 82 year-old widower, 3 children Former smoker, has advanced lung disease Also has worsening Alzheimer’s disease, can’t make own health care decisions Bed-bound, lives in nursing home 3 recent breathing crises n 911 call, hospitalized, on then off ventilator 7
Prognosis n n n Probable recurrent crises, back and forth to hospital Certified in end-stage condition Nursing home wants to know n n Hospital transfer when it happens again? Or, no transfer, no attempts at CPR? 8
Family Disagreement n n n 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? Mr. Green has no advance directive 9
On Not Being Mr. Green: Talk + Advance Directives n n n Don’t wait until too late Talk with family about preferences Document decisions in a legally valid way 10
Types of Advance Directives n Deciding who decides: naming health care agent(s) n AKA durable medical power of attorney n n Not financial power of attorney Deciding what’s to be done: living will n Covers life-sustaining, maybe other, treatments 11
Health Care Agents n n Selection, scope of authority up to individual Agent to decide based on n n “Wishes of the patient, ” unless “unknown or unclear” Then, “patient’s best interest” 12
Living Will n Follows “If … then …” model n n “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: n n n Terminal condition End-stage condition Persistent vegetative state 13
Terminal Condition n Incurable No recovery even with life-sustaining treatment Death “imminent” n n When’s “imminent”? Up to doctors 14
End-Stage Condition n n Progressive Irreversible n n n No effective treatment for underlying condition Advanced to the point of complete physical dependency Death not necessarily “imminent” n Primarily advanced dementia, maybe other diseases 15
Persistent Vegetative State n n n No evidence of awareness Only reflex activity, conditioned response Wait “medically appropriate period of time” for diagnosis 16
Maryland Formalities n Two witnesses n n Notary not required Statutory form optional -- other forms okay n n Out-of-state advance directives valid Maryland directive elsewhere? n Probably; depends on other state’s law 17
Changing or Revoking an Advance Directive n n n Presumed valid, no expiration New one on same topic revokes old Only patient may change/revoke n n Family cannot Review it now and then n Agents still available? Contact information current? Care preferences the same? 18
Some Pitfalls n Advance directive done secretly n n n Using ambiguous language n n “What? I’m his health care agent? ” “I know that’s what it says, but she didn’t understand. ” “No heroic measures. ” Picking agent + living will: Must agent follow living will? 19
Making It Work in the Real World n n n Copies to family/friends, doctor and hospital Wallet card or electronic registry Want comfort measures in case 911 is called? n Special order form (EMS/DNR Order) needed from doctor 20
More Information: Attorney General’s Office n n Forms: call 410 -576 -7000 Forms and other information via the Internet: n n n www. oag. state. md. us Then click on “Advance Directives/Living Wills” Much other material on Maryland law and policy n n www. oag. state. md. us Then click on “Health Policy” 21
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