Making sense of living wills and other advance directives
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Making Sense of Living Wills and Other Advance Directives . Jack Schwartz Assistant Attorney General January 29, 2008. Risk of Future Incapacity. Who’s to decide if I can’t? What’s to be done?. Approaches. Silence + assumptions “I’ll just leave it to my family to decide”

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Making Sense of Living Wills and Other Advance Directives

Jack Schwartz

Assistant Attorney General

January 29, 2008

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Risk of Future Incapacity

  • Who’s to decide if I can’t?

  • What’s to be done?

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  • Silence + assumptions

    • “I’ll just leave it to my family to decide”

    • “They’ll know what to do”

  • Talk but no documents

  • Talk + advance directives

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“I’ll Just Leave it to my Family to Decide”

  • Law sets priority among “surrogates”

    • 1. guardian of the person (by court)

    • 2. spouse

    • 3. adult children

    • 4. parents

    • 5. adult siblings

    • 6. other relatives or friends

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Risks of Leaving Decision to Family

  • Deciding in the dark is hard

  • Risk of disagreement

    • Surrogates of equal rank have equal authority

  • Added burden, legacy of bitterness

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Mr. Green

  • 82 year-old widower, 3 children

  • Former smoker, had end-stage lung disease

  • Also had worsening Alzheimer’s disease, can’t make own health care decisions

  • Lived in nursing home

  • 3 recent breathing crises

    • 911 call, hospitalized, on then off ventilator

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Mr. Green’s Prognosis

  • Probable recurrent crises, back and forth to hospital

  • Death likely within several months

    • Six? Four? Two? Uncertain

  • Nursing home wanted to know

    • Hospital transfer when it happens again?

    • Or, no transfer, no attempts at CPR?

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Family Disagreement

  • 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?

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Talk by Itself

  • Good, but is it enough?

  • Memories can fade

    • Document as reminder

  • Document can reassure doctors

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Best: Talk + Advance Directives

  • Don’t wait until too late

  • Talk with family about preferences

  • Document decisions in a legally valid way

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Types of Advance Directives

  • Deciding who decides: naming health care agent(s)

    • AKA durable medical power of attorney

      • Not financial power of attorney

  • Deciding what’s to be done: living will

    • Covers life-sustaining, maybe other, treatments

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Health Care Agents

  • Selection, scope of authority up to individual

  • Agent to decide based on

    • “Wishes of the patient,” unless “unknown or unclear”

    • Then, “patient’s best interest”

  • Ask your agent to read Proxy Handbook

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Living Will

  • Follows “If … then …” model

    • “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:

    • Terminal condition

    • End-stage condition

    • Persistent vegetative state

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Terminal Condition

  • Incurable

  • No recovery even with life-sustaining treatment

  • Death “imminent”

    • When’s “imminent”?

    • Up to doctors

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End-Stage Condition

  • Progressive

  • Irreversible

    • No effective treatment for underlying condition

  • Advanced to the point of complete physical dependency

  • Death not necessarily “imminent”

    • Primarily advanced dementia, maybe other diseases

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Persistent Vegetative State

  • No evidence of awareness

  • Only reflex activity, conditioned response

  • Wait “medically appropriate period of time” for diagnosis

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Doing Both: Effect of Instructions on Agent

  • Living will usually controls

  • Why? Clear evidence of what patient would want done

  • Do you really want to bind your agent?

    • Living will can be made non-binding guidance

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Maryland Formalities

  • Two witnesses

    • Notary not required

  • Statutory form optional -- other forms okay

    • Out-of-state advance directives valid here

    • Maryland directive elsewhere? Depends on that state’s law

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Changing or Revoking an Advance Directive

  • Presumed valid, no expiration

  • New one on same topic revokes old

  • Only patient may change/revoke

    • Family cannot

  • Review it now and then

    • Agents still available?

    • Contact information current?

    • Care preferences the same?

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Some Pitfalls

  • Advance directive done secretly

    • “What? I’m his health care agent?”

    • “I know that’s what it says, but she didn’t understand.”

  • Using ambiguous language

    • “No heroic measures.”

  • Are you sure about a treatment decision?

    • Mexican proverb: “The appearance of the bull changes, once you enter the ring.”

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Making It Work in the Real World

  • Copies to family/friends, doctor and hospital

  • Wallet card or (soon?) Maryland registry

  • Want comfort measures in case 911 is called?

    • Special order form (EMS/DNR Order) needed from doctor

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More Information: Attorney General’s Office

  • Forms: call 410-576-7000

  • Forms and other information via the Internet:


    • Then click on “Advance Directives/Living Wills”

  • Much other material on Maryland law and policy


    • Then click on “Health Policy”