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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

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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: 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

American Bar Association

August 2006

These slides are available at:


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


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

starting point what ads can t do
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.
what ads can do

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.
iii more effective advance planning

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 (

5. Give priority to appointment of Proxy.

6. Stress periodic review of one’s wishes.

7. Have you done your own advance planning?

drafting issues
Drafting Issues

P. 9


  • 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.

drafting issues9

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):

drafting issues10
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

drafting issues11
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




Workbook example

drafting issues13
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

drafting issues15
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
    • Full Circle Registry:
    • America Living Will Registry:
  • Driver’s License Notice?
drafting issues16
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 receive a new DIAGNOSIS
  • You have a significant DECLINE in your condition as measured by Activities of Daily Living (ADLs)
iv hipaa issues

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.

process oriented advance planning summary
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.
v polst beyond ads

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.

vi resources

P. 20 - 22

VI. Resources
  • Selected Advance Directive Forms
  • Work Book Resources
  • General EOL Care Resources
  • Guidance for Proxies
  • Selected Bibliography
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