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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

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
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
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
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
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
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
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
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
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



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
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 receive a new DIAGNOSIS

You have a significant DECLINE in your condition

Hipaa issues
HIPAA Issues

Access to protected health information by:


  • Agent under health care DPANot a problem

    durable power of attorney

  • Putative agent under springing powerProbably a problem

  • Close family member Probably a problem


Physicians orders for life sustaining treatment polst
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.


Advance planning summary
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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