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Effective Planning for Health Care Decision-Making at the End of Life American Bar Association Revised 2007. The Legislative Landscape of Surrogate Decision-Making. Default Surrogate Laws Health Care Advance Directives Health Care Durable Powers of Attorney Living Wills

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Effective Planning for Health Care Decision-Making at the End of Life American Bar Association Revised 2007

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Effective Planning for

Health Care Decision-Making at the End of Life

American Bar Association

Revised 2007


The Legislative Landscape of Surrogate Decision-Making

  • Default Surrogate Laws

  • Health Care Advance Directives

    • Health Care Durable Powers of Attorney

    • Living Wills

    • Mental Health Advance Directives

  • Out-of-Hospital DNR Laws

  • Organ Donation Laws

  • Guardianship Laws

  • Physician Assisted Suicide (Oregon)


Why Advance Directives Do Not Work as Well as Hoped

A great idea but:

  • Most people don’t complete

  • Standard forms do not provide much guidance

  • People who name an agent seldom explicitly explain their wishes

  • People fail to let health care providers know about the directive

  • Directives, when they exist, often are not in medical record

  • When the directive is in the record, it often is not consulted.


Starting Point:What Advance Directives Cannot Do

They cannot:

  • Provide cookie-cutter directions

  • Change fact that dying is complicated

  • Eliminate personal ambivalence

  • Serve as a substitute for discussion

  • Control health care providers


What Advance Directives Can Do

  • Serve as an integral, important part of advance planning communication

  • Encourage discussion as these directives are less about specific medical decisions and more about values and priorities

  • Empower and give directions that reflects the patient’s voice


How to Select a Proxy

  • Name one person

  • Have a back-up choice

  • Evaluate potential proxies based on:

    • Meeting legal criteria in your state

    • Willingness to speak on your behalf

    • Ability to act on your wishes, not theirs

    • Located near by or able to travel to you

    • Knows you and what is important to you

    • Available into the future

    • Willing to serve as a strong advocate with

      physicians and medical staff

      ?


Scope of Proxy’s Authority or Discretion

  • Be explicit to maintain clarity on your wishes

  • Provide details on level of discretion for proxy. For example, do you want proxy to be able to override written instructions


Scope of Authority

Consider giving express authority to:

  • Make anatomical gifts, autopsy, disposition of remains

  • Contract for, hire, fire health care and support personnel

  • Change domicile

  • Execute releases and waivers

  • Institute legal action on your behalf

  • Consent to experimental treatment

  • Delegate decision-making during absence

  • Care for pets

  • Determine visitation policy

  • Make mental health decisions

  • Coordinate authority with person who holds

    Durable Power of Attorney for property


Other Questions

  • When does the proxy document take effect?

  • Who determines decision-making capacity?

  • What specific treatment instructions should be included?

    • Medical history

    • Values history

    • Impact of secondary illnesses


Other Points

  • Describe level of pain control

  • Designate primary physician

  • Provide for pets

  • Discuss emotional and environmental needs

  • Consider Five Wishes, a living will recognized in 40 states


Five Wishes

  • The person I want to make health care decisions when I can’t

  • The kind of medical treatment I want or don’t want

  • How comfortable do I want to be

  • How I want people to treat me

  • What I want my loved ones to know

    www.AgingwithDignity.org


Communicating

After completing your advance directive,

  • Tell you family and friends

  • Talk with your physician or agent

  • Consider a wallet card

  • Register your advance directive with one or more:

    • Your state

    • www.USLivingWillRegistry.com

    • www.Docubank.com

    • Full Circle Registry: www.protectedlivingwill.com

    • www.NationalLivingWills.com

    • America Living Will Registry: www.ALWR.com


When to Review your Choices

Review when any of the 5 Ds 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


HIPAA Issues

Access to protected health information by:

RelationshipStatus

  • Agent under health care DPANot a problem

    durable power of attorney

  • Putative agent under springing powerProbably a problem

  • Close family member Probably a problem

    www.hhs.gov/ocr/hipaa


Physicians Orders for Life-Sustaining Treatment (POLST)

Standardizing patient communications = advance directive

Standardizing physicians end-of-life orders = POLST

Oregon’s POLST requires:

  • Physician to ask about patient’s wishes re: CPR, care goals (comfort vs. treatment), antibiotics, nutrition and hydration

  • Physician to translate wishes into orders on distinct (bright pink) file cover sheet

  • All providers must ensure form travels with patient.

www.ohsu.edu/ethics/polst/


Advance Planning Summary

  • Create your own directive:

    • Complete values worksheet

    • Consider different versions of advance directives accepted by your state

    • Talk to lawyer, proxy and physician

    • Explain your viewpoints to lawyer, proxy and physician

  • Periodically review the 5 Ds


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