by: Dieter Zacher, Esq.
Law Offices of Dieter Zacher, A Full-Service Law Firm
Introduction
These legal documents have a dozen different names, but just one goal -- helping you direct your health care if you become unable to communicate your wishes. The documents that set out your wishes for medical care may go by various names depending on the state in which you live: "advance directive", "living will", "directive to physicians", "medical power of attorney", "patient advocate designation", and so on. These are all terms for health care directives -- that is, documents that let you write out instructions about the type of health care you want to receive, including who should oversee your treatment if you are unable to speak for yourself. Here's a brief overview to help you understand the basic types of health care directives.
Health Care Declaration
Many people know this document as a "living will," though it bears no relation to the conventional will or living trust used to leave property at death. This is the document that lets you state what type of medical treatment you do or do not wish to receive if you are too ill or injured to direct your own care. (Among other things, it's the document you can use to be sure doctors do -- or do not -- "pull the plug.") The document may have a different name in your state, but you'll recognize it as the place where you write down your specific wishes about types of medical care.
Durable Power of Attorney for Health Care
This document, also known as medical power of attorney, allows you to name a trusted person to make medical decisions for you if you are unable to communicate on your own. The person you name to make these decisions is usually called your "agent" or "attorney-in-fact". You can give your agent the authority to oversee the wishes you've set out in your health care declaration, as well as the power to make other necessary decisions about health care matters. Some states combine the declaration and durable power of attorney into a single form, most often called an "advance health care directive."
Do Not Resuscitate (DNR) Order
If a medical emergency occurs, a DNR order alerts emergency personnel that you do not wish to receive cardiopulmonary resuscitation (CPR). DNR orders are sometimes made to supplement other health care directives, usually by those who are already critically ill and feel strongly that they do not want to receive life-prolonging treatment when close to death. If you are in the hospital, you can ask your doctor to add a DNR order to your medical record. If you are not hospitalized, you can make what's called a pre-hospital DNR order to keep nearby in case paramedics are called to your home or care facility.
What You Can Cover in Your Health Care Directives
Your Health Care Declaration
Your health care declaration is the place to write out what you do and do not want in terms of medical care if you are unable to speak for yourself. You don't need to become a medical expert to complete your declaration, but it will help you to become familiar with the kinds of medical procedures that are commonly administered to patients who are seriously ill. These include:
• transfusions of blood and blood products
• cardiopulmonary resuscitation (CPR)
• diagnostic tests
• dialysis
• administration of drugs
• use of a respirator, and
• surgery.
You can discuss these procedures with your doctor or a patient representative at a hospital or health insurance plan office, or you can turn to self-help resources for more detailed information.
Pain Relief
In addition to the medical procedures listed above, you may want to give some thought to issues of pain medication. The laws of most states assume that people want relief from pain and discomfort and specifically exclude pain-relieving procedures from definitions of life-prolonging treatments that may be withheld.
Food and Water
Some states also exclude food and water (commonly called nutrition and hydration) from their definitions of life-prolonging treatments that may be withheld. But there is some controversy about whether providing food and water or drugs to make a person comfortable, will also have the effect of prolonging life. Some people are so adamant about not having their lives prolonged that they direct that all food, water, and pain relief be withheld, even if the doctor thinks those procedures are necessary. Under the U.S. Constitution, you are allowed to leave instructions like these even if your state law is restrictive; your doctors are legally bound to follow your wishes or transfer you to another health care provider who will (provided that you are competent to make such decisions and leave clear and convincing evidence as to what those wishes are).
On the other hand, you may feel concerned about how much pain or discomfort you may experience during a final illness. In this case, you may prefer to have your life prolonged rather than face the possibility that discomfort or pain will go untreated. Obviously, it's a very personal choice; you're free to leave the instructions that feel right for you.
[Editor's note: For more information on the Constitutional aspect of this topic, please see the 1990 Supreme Court case of Cruzan v. Director, Missouri Department of Health. Both the main and concurring opinions of this case will provide the reader with insight as to how the courts view the issue of personal medical decisions as a Constitutional right.]
Your Durable Power of Attorney for Health Care
When you make a durable power of attorney for health care, you can give your health care agent as much or as little power as feels comfortable to you. Most people give their health care agent comprehensive power to supervise their care. Recognizing this, the "power of attorney" forms for most states give the person you name the authority to make all health care decisions for you unless you specifically place limits on that authority in the document. This means that your agent will normally be permitted to:
• consent or refuse consent to any medical treatment that affects your physical or mental health (there are usually exceptions to this rule for situations such as extreme psychiatric treatments and termination of pregnancy, and your agent is not permitted to authorize any act that violates the wishes you've stated in your health care declaration)
• hire or fire medical personnel
• make decisions about the best medical facilities for you
• visit you in the hospital or other facility even when another visiting is restricted
• gain access to medical records and other personal information, and
• get court authorization, if required to obtain or withhold medical treatment, if for any reason a hospital or doctor does not honor your health care declaration or the authority of your health care agent.
Limiting Your Health Care Agent's Authority
Keep in mind that as long as you are able to understand and communicate your own wishes, your agent cannot override what you want. Your agent steps in only if you can no longer manage and communicate on your own. In addition, as mentioned, you are permitted to restrict your agent's authority in any way that you like. For example, some people give their health care agent only the authority to carry out the health care wishes specified in their health care declaration, and not to make other medical decisions for them.
Think carefully, however, before you add limiting language to your power of attorney. One of the most important reasons for appointing a health care agent is so that someone will be there to respond to the needs of your situation as it develops. Your medical needs may change in ways that you cannot now foresee, and an agent who has full power can act for you no matter what the circumstances.
Know when health care providers must follow your instructions for medical care
After you've gone to the trouble of writing down your wishes for medical treatment in a health care directive, you may be concerned about what would happen if a doctor or hospital doesn't want to follow your instructions. To put your mind at ease, know that health care providers are generally required to comply with the wishes you set out in your health care documents -- and to honor your health care agent's authority as long as the agent's directions are a reasonable interpretation of your wishes.
__________________________________________________
The author is the founder of the Law Offices of Dieter Zacher, established in 2000 as a full-service law firm practicing the areas of family law, real/estate, business, contracts, personal injury, immigration, wills & trusts. Mr. Zacher has been voted 2004 and 2005 Southern California Rising Star by Los Angeles Magazine. Only the top 2.5% of Southern California lawyers receive this distinction. The award is granted based on a polling of the lawyers who received this award the previous year. The award acknowledges attorneys who are forty years of age or younger or who have practiced law for ten or fewer years. Biographical information about Mr. Zacher is included in the September 2004 issues of Los Angeles Magazine and Southern California Super Lawyers – Rising Stars Edition Magazine.
Dieter Zacher, Esq. can be contacted via the following information:
Phone: 714-960-6170
E-Mail: dzacher@hotmail.com
Address:
Law Offices of Dieter Zacher
17011 Beach Boulevard, Suite 900
Huntington Beach, California, 92647
Please visit the firm's website at www.legaladvicenetwork.com
http://huntingtonbeachdivorceattorney.com/
https://www.handelonthelaw.com/united-states/huntington-beach/attorney/dieter-zacher
[ Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com nor any of its affiliates shall have any liability stemming from this article. ]
