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Making Sense of Living Wills and Other Advance Directives

Making Sense of Living Wills and Other Advance Directives. Jack Schwartz Assistant Attorney General April 2008. 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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Making Sense of Living Wills and Other Advance Directives

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  1. Making Sense of Living Wills and Other Advance Directives Jack Schwartz Assistant Attorney General April 2008

  2. 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

  3. Risk of Future Incapacity • Who’s to decide if I can’t? • What’s to be done?

  4. Common Approach: Silence + Assumptions • “I’ll just leave it to my family to decide” • “They’ll know what to do”

  5. “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

  6. “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

  7. 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

  8. 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?

  9. 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 

  10. 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

  11. 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

  12. 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”

  13. 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

  14. Terminal Condition • Incurable • No recovery even with life-sustaining treatment • Death “imminent” • When’s “imminent”? • Up to doctors

  15. 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

  16. Persistent Vegetative State • No evidence of awareness • Only reflex activity, conditioned response • Wait “medically appropriate period of time” for diagnosis

  17. 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

  18. 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?

  19. 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?

  20. 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

  21. 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”

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