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Advance Directives: Pitfalls and Problems PowerPoint Presentation
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Advance Directives: Pitfalls and Problems
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  1. Advance Directives: Pitfalls and Problems Jim Bohrer JFbohrer@lawcjb.com 409 West Patterson DriveSuite 205 Bloomington, Indiana 47403 (812) 332-1000 www.lawcjb.com

  2. Agenda • Advance Directives and Related Documents • Scenarios: • 1. When there are no advance directives • 2. When advance directives raise questions of validity • Reminders for Medical Offices

  3. Advance Directives and Related Documents • Advance Directives Include: • Medical Power of Attorney • Living Will or Life Prolonging Procedures Declaration • Out of Hospital DNR Declaration • HIPAA Release • Durable Power of Attorney

  4. Scenarios: #1When there are no advance directives • Indiana statute provides default decision maker: • Judicially appointed guardian • Spouse, parent, adult child, or adult sibling • Religious superior, if member of religious order Ind. Code § 16-36-1-5

  5. Scenario: #1When there are no advance directives • Problems: • Not patient’s choice of decision maker • Decisions may be delayed • Difficulty locating/appointing decision maker • Decision maker unable to make decision • Disagreement among decision makers • Decisions may be inconsistent with patient’s wishes

  6. Scenario: #1When there are no advance directives • When problems arise, doctor may be asked: • Capacity to execute advance directives? • Lack of capacity sufficient to appoint guardian? • Important that certifications are not ignored • Patient’s medical needs go unattended to • Patient’s financial affairs may become at risk • Guardianship hearing delayed

  7. Scenario: #2When advance directives raise questions of validity • E.g., Old, out-of-state, or otherwise problematic • Basic Requirements: • (1) in writing • (2) signed by appointor • (3) witnessed by two disinterested adults (persons other than appointee, family members, or persons entitled to take from appointor’s estate)

  8. Scenario: #2When advance directives raise questions of validity • Duty to investigate into authority to consent? • No liability if good faith belief that the individual has authority to consent or decline treatment for patient Ind. Code §16-36-1-10 • Can refuse to honor living will or DNR if: • (1) Reason to believe document is not validly executed or patient has changed mind, and(2) Patient is unable to validate If refuse to honor, must attempt to ascertain patient’s intentions and determine actual validity of document Ind. Code §§ 16-36-4-13(e), 16-36-5-13(a) • Believe DNR has been revoked Ind. Code §16-36-5-19(b)

  9. Reminders for Medical Offices • Durable Power of Attorney can become effective upon incapacity • E.g., “This Power of Attorney shall commence and be in full force and effect when two physicians have personally examined me and certified in writing that I am unable to make or communicate decisions regarding my affairs.”

  10. Reminders for Medical Offices • HIPPA Concerns • An individual authorized to consent to treatment has the right to receive health care information relevant to the contemplated treatment Ind. Code § 16-36-1-11

  11. Reminders for Medical Offices • Handling disagreements • Among co-health care power of attorneys • If treatment decision is not life threatening, do nothing until there is agreement or seek a court order • If treatment decision is life threatening, do what is minimally necessary to keep the patient alive • Between gay/lesbian partner and family • Verify authority – patient’s partner will NOT be the authorized representative without documentation • Family may dispute visitation

  12. Reminders for Medical Offices • Hospital provided advance directives • May be out of date • May lack proper authority • May not be from patient’s state of residence

  13. Reminders for Medical Offices • Proposed advance directive forms • Physician’s Order for Life Sustaining Treatment • Check list of patient’s wishes regarding different treatments • Signed by health care provider after discussion with patient or authorized representative • 5 Wishes (effective in 40 states, but not Indiana) • The person I want to make decisions for me • The kind of medical treatment I want or don’t want • How comfortable I want to be • How I want people to treat me • What I want my loved ones to know

  14. Advance Directives: Pitfalls and Problems Jim Bohrer JFbohrer@lawcjb.com 409 West Patterson DriveSuite 205 Bloomington, Indiana 47403 (812) 332-1000 www.lawcjb.com