Making Sense of Living Wills and Other Advance

  • Slides: 21
Download presentation
Making Sense of Living Wills and Other Advance Directives Jack Schwartz Assistant Attorney General

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

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

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

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

“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

“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,

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

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

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

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

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

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

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

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

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

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 --

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

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

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

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

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