Two health care documents are essential. First, a Health Care Power of Attorney (POA) lets you name a “Health Representative” to act on your behalf if you’re unable to make decisions. Second, Advance Directives allow you to spell out your wishes for end-of-life care.
Depending on the state, these may be combined in a single document or kept separate. Some states have additional advanced directive documents like a “Mental Health POA” and a “Do-Not-Resuscitate” directive. Another option is POLST (Physician Orders for Life Sustaining Treatment), where a physician plays an active role in preparing end-of-life documents and ensuring that patient wishes are honored.
Health care documents are completely separate from financial planning documents. Financial documents designate an agent to manage your money if you become incompetent and specify what happens to your assets after death. Health care documents specify who’ll make health care decisions for you and what kind of health care you want if you’re alive but incapable of decision-making. (Should your health representative and your financial agent be the same person?)
States use different names for health care documents, including advance directive, durable POA for health care, medical POA, appointment of health care proxy, designation of health care surrogate and patient advocate. Regardless of the name, these documents do the same thing: allow you to record your wishes for health care if you can’t speak for yourself and designate an individual to act on your behalf if you’re unable to do so.
Most states provide forms online through the state Attorney General’s webpage. You don’t need a lawyer to use them. Many states include excellent information about what to consider as you prepare these documents – issues ranging from feeding tubes to organ donation.
A legally binding alternative in many states is the “Five Wishes Living Will” (FWLW). The FWLW is a comprehensive user-centric document, written in plain English, that covers treatment preferences and designated surrogates along with other matters relating to “personal, spiritual, and emotional” preferences. More about the Five Wishes Living Will
Without advance directives, decisions about what happens to you in your final days will be made by someone else – a doctor, a judge, a distant or estranged family member. Studies show that seniors without advance directives tend to receive more prolonged and invasive end-of-life care. This results partly from the medical bias towards doing everything possible to maintain life, but also because with nothing to guide decision-making, seniors may be kept alive pending a decision by a court or hospital ethics committee.
Choosing a Health Representative (Durable POA for Health Care)
A Durable POA for Health Care designates someone to make health care decisions on your behalf. Most states ask you to name a first choice and an alternate, in case your first choice doesn’t work out.
Your health representative can’t be your doctor or anyone else you receive care from, like a residential care provider. Advice-givers (like in this example) emphasize that your health representative should be someone you know well and trust absolutely; a person knowledgeable about your values, religious beliefs and desires; someone you feel confident will carry out your wishes; and who is strong-willed and assertive, since they may have to argue with medical personnel or estranged family members.
Of course, for many people without family, the above suggestions are meaningless, since it’s hard to find even one person willing and able to advocate for you, much less two. If you’re diagnosed with Alzheimer’s, your health representative may be needed for many years. That’s a lot to ask of a friend. TOO much to ask of a friend in your age bracket.
Contact with younger people other than care professionals is rare for many old people without family. When everyone you know is either as old as you or a care provider, who can you choose?
The answer is: “no one.”
An article I’ve co-authored, published in the Nov 2012 Journal of the American Geriatric Society, proposes a new category of professional, the health fiduciary, who would be trained and licensed to serve as a health representative. The article was discussed in NYT’s NewOldAge blog (Hiring an End-of-Life Enforcer).
More About Health Representatives
Mental Health POA
In many states, including my state, Arizona, a separate Mental Health POA is essential, in addition to a regular Health Care POA. A designated health representative doesn’t have the authority to make decisions related to mental health. (Nor does a family member who would normally be accepted as a health representative if no regular health care POA existed.) If a doctor certifies that inpatient behavioral health treatment is necessary and there’s no mental health POA, a court proceeding must create an emergency guardianship.
You may think you don’t need a Mental Health POA unless you’re diagnosed with Alzheimer’s or have a history of mental health problems. However, all elderly people are at risk of being committed to a behavioral health facility. It could happen as a result of a medication interaction inducing temporary dementia, behavioral issues related to other conditions or a judgment by a facility director that you’re behaving aberrantly.
You may or may not want the person you name as your Health Representative to also serve as your Mental Health Representative. For example, if a diagnosis of Alzheimer’s suggests the need for long-term mental health surrogacy, you may choose not to ask this of your friends, but instead to seek paid assistance (perhaps your financial agent or an elder care professional).
If you live in a state that requires a Mental Health POA, you can likely download the necessary form from the state Attorney General’s webpage.
Note: This information comes mostly from: Flagstaff Medical Center Behavioral Health Services
Living Will
Your Living Will states your wishes regarding end-of-life medical interventions and serves as a guide to your health care providers and your health representative if you have one. It details the type of care you do and don’t want if you become incapacitated, including whether you want life-prolonging treatments at the end of your life. (Life-prolonging procedures range from surgical interventions to use of respirators and feeding tubes). Your Living Will may also specify whether you want to donate organs and whether you want to be buried or cremated.
The decision to provide or withhold life-prolonging procedures is made when you’re in what doctors determine is a “permanent coma,” and there’s nothing they can do to save your life.
If you have a health representative, their decisions should be based on what you write in your Living Will (as well as anything you may tell them.) If you DON’T have a health representative, your Living Will may be the only thing that can guide health care providers regarding your preferences. Therefore, it’s all the more important to have as comprehensive a Living Will as possible, and to do your best to make sure that medical providers know about it. (See also Preparing for a Medical Emergency.)
For ideas about what to include in your Living Will, the Five Wishes Living Will pretty much covers it all. It’s worth checking out for this reason alone.
Do-Not-Resuscitate Directive
A “do not resuscitate” or “DNR” directive is a legal order specifically addressing an individual’s wish not to receive CPR if he or she stops breathing, and not to receive advanced cardiac life support (ACLS) if his or her heart stops. Some wish to replace this phrase with “allow natural death” (“AND”), which focuses on what’s to be done rather than what’s to be avoided.
A DNR is very limited in its application. Persons with DNR directives can still receive chemotherapy, antibiotics, dialysis, and other appropriate treatments.
As it happens, CPR and ACLS don’t improve outcomes for the majority of elderly individuals with multiple medical problems. Nonetheless, if an ambulance is called because someone has stopped breathing or because their heart has stopped, paramedics are legally required to initiate these procedures without even checking for a DNR. In that circumstance, the only way to prevent aggressive treatment is for your DNR to be immediately available on your person or ready to be immediately provided by whoever called the ambulance.
In some states, even that may not be enough to stop paramedics from initiating CPR and ACLS. Check your state Attorney General’s website for state-specific information.
Note: Most of the information in this section has come from Wikipedia, Do Not Resuscitate.
Physician Orders for Life-Sustaining Treatment (POLST)
A movement (POLST) is gaining ground for an additional document in which a physician signs off on your end-of-life treatment preferences. The idea is that since a doctor is involved in preparing the document, it won’t be too vague or not inclusive enough. It would be highlighted in a person’s electronic medical records, accessible to any attending physician.
Fifteen states currently authorize POLST, and efforts are afoot in other states. It would seem like a no-brainer. But when the Wisconsin Medical Society moved to expand use of POLST, it backed down after pressure from the state’s Roman Catholic bishops.
Preparing Your Health Care Documents
Suggestions for completing advance directives usually tell you to have a long, frank talk with whoever will be your health representative and to bring any questions you may have to your health care providers. These suggestions are widely ignored.
End-of-life choices are hard to think about and hard to talk about. Studies show that many people – well over 50% – fail to complete advance directives at all. Others designate a spouse or child without ever discussing their wishes with them.
When you’re without a spouse or child, by failing to have this conversation with yourself and getting it down in writing, you open your future defenseless self to care you wouldn’t want. Even without a durable POA that designates a health representative, a comprehensive Living Will can make a difference.
As for talking to your health care providers, there are problems about actually doing this and having it matter. First, few primary care doctors have time for a serious conversation about end-of-life choices. Second, when a decision is needed, a specialist or hospitalist is often in attendance and the primary care doctor may not even know that their patient is in the hospital. Third, after Sarah Palin ranted about “government death panels,” a provision in the Affordable Health Care Act (ACA) disappeared that would have encouraged doctors to have these conversations.
Validating Your Health care Documents
Your health care documents must be notarized or witnessed by at least one adult, two in some states. The notary or witness may not be the person you’re designating as health representative nor anyone providing health care or custodial care, or associated with a facility providing that care, at the time the documents are notarized. The notary public or witness may not be related to you by blood or marriage and may not be entitled to any part of your estate either in your will or as a matter of succession according to the law.
The health care POA is effective immediately after you sign it. Unless it has a specific date on which the representative’s duties will end, it’s effective until revoked, or until you die, or until you recover competence to make your own health care decisions.
What to Do with Your Health Care Documents
Your health care documents are worthless if they’re not in the right place at the right time. If you’ve designated a health representative and alternate, both should have copies of your documents. It may be appropriate to give copies to your doctor and any hospital or facility you use frequently. The original documents should list all the people you’ve given copies to.
Many states maintain a registry for advance directives. If you live in one of those states, your state Attorney General’s webpage will guide you through the process. Be sure to inform your health care providers about it. (Your documents are not open to the public but your medical providers should have access to them when needed.)
As electronic medical records become the norm, they can be flagged to direct health professionals to the existence of advance directives. It should be easier in the near future to feel confident that our advance directives will be findable when needed.
Since the doctors administering to your needs at the end of your life may be hospitalists (that is, doctors employed by hospitals to see patients in the hospital) and others who don’t know you at all, it’s also wise to keep copies in your emergency hospital kit and with other important papers in your home.
Changing or Revoking Your Health care Documents
The decisions we encode in our advance directives at age 60 may change when we’re older, especially after we’re gotten a glimpse ahead.
If you need to make changes, don’t just cross out what you don’t want and write in your new preferences. It’s best to shred the old document and write a new one. While most health care providers are happy to have guidance and won’t quibble about erasures, medical personnel (like everyone else) may have strong opinions about en-of-life care, so it’s recommended that you formally prepare a new document. Once you’ve had it notarized, make sure everyone who has the old one gets a copy. (You’ll be glad that your original includes a list of these people.)
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