Making Sense of Living Wills and Other Advance Directives

Jack SchwartzAssistant Attorney General

April 2008

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What’s the Issue? ~ 1.5 million hospital and nursing

home deaths annually > 30,000 in Maryland

Most after a chronic illness Most after a decision about

medical interventions

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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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Common Approach: Silence + Assumptions “I’ll just leave it to my family to

decide” “They’ll know what to do”

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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

As of July 1: also “domestic partner” 3. Adult children 4. Parents 5. Adult siblings 6. Other relatives or friends

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“They’ll Know What to Do” Will they? 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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Case Study: A Patient Without Capacity – Mr. Green 82 year-old widower, 3 children Former smoker, has advanced lung

disease Also has worsening Alzheimer’s

disease, can’t make own health care decisions

Bed-bound, lives in nursing home 3 recent breathing crises

911 call, hospitalized, on then off ventilator

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Prognosis Probable recurrent crises, back

and forth to hospital Certified in end-stage condition Nursing home wants 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? Mr. Green has no advance

directive

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On Not Being Mr. Green: 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”

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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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Maryland Formalities Two witnesses

Notary not required Statutory form optional -- other

forms okay Out-of-state advance directives valid Maryland directive elsewhere?

Probably; depends on other 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.” Picking agent + living will: Must

agent follow living will?

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Making It Work in the Real World Copies to family/friends, doctor

and hospital Wallet card or electronic 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: www.oag.state.md.us Then click on “Advance Directives/Living Wills”

Much other material on Maryland law and policy www.oag.state.md.us Then click on “Health Policy”