Advance Directives

  1. Q. I did a living will almost three decades ago. Does it need to be updated?
  2. Yes. A lot has changed since 1990.  The law changes over time in response to changes in society.  Medical advancements, especially technology has dramatically affected this area of the law.

Let’s look back at some of the important medical advancements in our lifetimes.   Each summer from 1916 on there was an outbreak of polio in some part of the country, reaching epidemic proportions in 1949 when 2,700 died and over 42,000 cases were reported in the US and Canada.  In 1952 the polio vaccine was developed and today the threat of that disease is nearly gone.  In 1960 the first heart pacemaker was implanted.  In 1967 the first heart transplant was performed.  In 1970 the CAT scan was developed and in 1975 the first MRI.  In 1998 the first live donor liver transplant happened.

In 1967 a Chicago human-rights attorney, Luis Kutner, suggested using a living will or A Declaration of a Desire for a Natural Death as they are called in South Carolina. Over the next ten years 40 states adopted some version of this document especially after the New Jersey case of Karen Ann Quinlan hit the media. When she was 21, Quinlan became unconscious after she consumed Valium along with alcohol while on a crash diet and lapsed into a coma followed by a persistent vegetative state.  Her parents filed suit after doctors, under threat from prosecutors, allow them to disconnect Quinlan from her ventilator, which the parents believed constituted extraordinary means of prolonging her life and it was not required in her Catholic faith.  The parents’ request was eventually granted.  Their daughter lived another nine years on just a feeding tube, which they consented to.

Quinlan’s case continues to raise important questions in moral theology, bioethics, euthanasia, legal guardianship and basic human rights.  Her case has affected the practice of medicine and law around the world. A significant outcome of her case was the development of formal ethics committees in hospitals, and a formal recognition of the right of people to refuse extraordinary means of treatment, even in situations where cessation of treatment could end a life.

A SC living will allows doctors (two are required to certify your condition and make the decision) to remove life support so one can die a natural death under one of these two conditions:

  1. You have a medical condition that is incurable, terminal and you are going to die in a very short period of time (days not weeks); or,
  2. You are in a permanent state of unconsciousness.

A health care power of attorney addresses some of the problems with a Declaration for a Desire of a Natural Death, which are that two doctors make the final decision, not family members.  Its only suitable for a near death situation and does not cover decision-making for dementia, Alzheimer’s disease, Parkinson, chemo fog for cancer patients, car accident and unconscious etc.  It does not address adults with temporary needs for help with decision-making like schizophrenia, manic state of bi-polar, severe depression, or suicide.  A living will does not address limitations that affect competency like Downs Syndrome or autism.

First recommended by a Presidential Commission in 1983, the health care power of attorney became popular in SC in the mid-1990s and is now the preferred document of the SC Bar and Hospice. These documents vary widely by state, but all states have them with the common factor being that a HCPOA allows you to name an agent and alternate agent(s) to act on your behalf any time you can’t make your own medical decisions.  A HCPOA can be customized and often contains language for a Declaration of a Desire for a Natural Death so two documents are not needed.  The HCPOA requires two disinterested witnesses and a notary under the most recent revisions to the SC statute.  Only about 1/3 of Americans have HCPOAs and many of those that do have documents have done little to customize them.

Another issue that occurs is when EMTs are called to deal with a medical crisis.  By law EMTs must have a physician order in hand to limit medical care. Therefore in 1990 the Do Not Resuscitate Order (DNR Order) was introduced.  A DNR Order can only be signed by a doctor, not a lawyer.  Doctors often require you have a condition that is terminal or an otherwise severe heart or medical condition.  It states resuscitation is not required if the heart stops. A HCPOA can authorize an agent to sign a DNR with a doctor on your behalf.

The Physician Orders for Life-Sustaining Treatment (POLST) form and program were originally developed in Oregon in 1991 to complement traditional advance directives, to help ensure that patient wishes to receive or to limit specific medical treatments are respected near the end of life. Programs based on the POLST Paradigm are now implemented throughout most states. The overarching goals are the same. orders are intended for persons with advanced chronic illness who wish to turn some aspects of their advance directives or advance care plans into action at the present time to ensure that their medical treatment preferences are respected. South Carolina allows use of POLST forms, although they are still not widely available in our part of the state.  GA and NC have met the requirements for nationally endorsed POLST programs.

Although an advance directive is often not enough because it lacks customization, POLST form orders were always meant to support, not supplant, the advance directive. Part of the reason for the misunderstanding concerning how POLST form orders complement the advance directive is that general practice attorneys often lack familiarity with what happens in the clinical setting throughout the trajectory of a client’s illness.

You can also preselect and name a case manager or patient advocate in your health care power of attorney or at least indicate you want one, if you don’t have suitable family or a friend that could oversee your care in a crisis or prolonged illness.

April 16th is National Health Care Decisions Day.  This month is great time to meet with an elder law attorney to discuss updating your living will.

DISCLAIMER    The information given in this article is of a general nature and does not create an attorney-client relationship.  You should always consult with an attorney regarding the specific facts of your situation.  April 2020

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