Gregory S. DuPont
Advance Directives: Part II - Health Care Issues
Overview: Part I of this series looked at the durable power of attorney as an estate planning tool to direct financial quality of life decisions and designate an agent to act on one’s behalf when one is no longer able to do so. However, there are other issues that may be just as important as financial decisions, revolving around what types of health care measures will be taken (to alleviate suffering or prolong life) if one is incapacitated. How, and by whom, such health care quality of life decisions will be made can be addressed using additional advance directives: living wills and health care proxies.
What do you know about living wills and health care proxies? Test your knowledge.
- A living will is a
- Set of instructions for the distribution of one’s property if an individual becomes incapacitated and is unable to express his or her wishes.
- Trust written under a will.
- Set of instructions for a health care provider stipulating the extent of medical coverage to maintain one’s life, should incapacitation render the person unable to express his or her wishes.
- None of the above.
- A health care proxy appoints an agent to make any and all health care decisions, in effect implementing instructions, on one’s behalf, in the event of incapacity. True or False.
- Some states have enacted Default Surrogate Decision Making Statutes that empower health care professionals to make decisions on behalf of an incapacitated patient who did not execute advance directives prior to incompetence. True or False.
Read here to learn more about living wills and health care proxies.
In the area of health care decision-making, you may recall the Karen Ann Quinlan case. In 1979, the New Jersey Supreme Court granted permission to the Quinlan family to discontinue Karen’s respirator—which her doctors believed was prolonging her life in a vegetative state. This case led to the enactment by various states of Natural Death Act Declarations (i.e., living wills).
In 1990, in the Nancy Beth Cruzan case, the U.S. Supreme Court affirmed that a person’s right to refuse treatment is guaranteed by the Constitution; but held that individual states had the right to determine the criteria for providing or withdrawing life sustaining treatment. (Nancy Cruzan, permanently incapacitated from an accident, had discussed her feelings about prolonging life with family and friends, but had not committed her thoughts to writing. Missouri required clear and convincing evidence—i.e., a written document.)
The Quinlan and Cruzan cases suggest that instructions of a formally appointed health care agent must be followed, provided such directives are consistent with individual state guidelines. While definitions vary from state to state, all U.S. states and the District of Columbia have living will statutes which allow individuals to provide instructions regarding life sustaining measures in the event of a terminal illness, including (in some states) coma or persistent vegetative state.
Also, in 1991, the Federal Patient Self-Determination Act was passed, requiring all Medicare and Medicaid health care providers to inform recipients of their rights (under various court decisions and state statutes) to accept or refuse medical treatment, and of the right to set up advance health care directives.
Living Wills vs. Health Care Proxies
A living will is a set of instructions for a health care provider, stipulating the extent to which measures should be taken (consistent with state statutes) to maintain one’s life, should incapacitation render the person unable to express his or her wishes. A health care proxy (also called a health care power of attorney in some states) appoints an agent to make any and all health care decisions, in effect implementing instructions, on one’s behalf in the event of incapacity (a life threatening condition, or where the individual is unconscious and a treatment decision must be made).
Since the health care proxy grants decision-making power to a surrogate, its scope is broader than the living will which simply states a person’s wishes in the face of terminal illness. The documents may be drawn separately, or the living will may be incorporated into the health care proxy, depending on state law.
Both directives come into play only when the principal is unable to make health care decisions for him or herself. Up until that point, the individual maintains decision-making authority with respect to health care. Usually, an individual can change or revoke both directives at any time.
Some states have also enacted Default Surrogate Decision Making Statutes which define a priority of individuals who are empowered to act on behalf of a person who did not execute advance directives prior to incompetency.
Into the Future
These quality of life issues have become further complicated by the controversy surrounding the physician-assisted death movement and ongoing “Death with Dignity” voter initiatives. (One particularly important unresolved issue that could affect the use of living wills is the definition of “suicide” for insurance purposes.)
Despite such controversies, not only are one’s personal wishes at stake, but also the potential emotional and financial burden placed on family members by a medical condition with no hope of recovery. Advance directives can allow an individual to maintain autonomy, while providing specific instructions to assure that his or her wishes are carried out to the fullest extent possible.
Quiz Answers: 1) c; 2) True; 3) False.