Living Wills Ignored - what else is new!
An article from Kaiser Health News today accurately notes that living wills are being ignored. See here - http://bit.ly/bSVCkR . The writer points out that only 36% of Americans actually have such a document. What the author doesn't point out is that, of the people who do having "living wills" and actually can locate them when they go into a hospital - hospitals are required under the Patient Self Determination Act to advise people of their rights to accept or refuse treatment and to ask the patient if they have an advance directive - less than 10% of these documents
1. Actually make it into the medical records.
2. Acurately reflects the wishes of the patient.
3. Are seen by the attending physician ,
4. Are morally agreeable to the attending.
This is really not good news for those who have living wills and for those who think they need them. It is clearly an area of the law that is in transition. In our elder law practice, we naturally see the impact of the use or misuse of advance directives. Even the terminology is confusing. Many people get their "will" and "living will" confused. The same is true with a Power of Attorney for Health Care and Power of Attorney. Some make simple statements of what they wish to happen to them if they have an incurable illness. All of these documents can be brought under the broad category of "Advance Directives." Let's look at the history of the directive:
1. LIVING WILL - Oldest form of advance directive, dating back to 1969 and attorney Luis Kutner. In an Indiana Law Journal article Kutner proposed the use of long-standing estate law principles permitting the control of property distributions after death (by Will) in health care settings. The resulting document, which was to be used during one's life, came to be known as a "Living Will." Living Wills usually contain specific references to certain illnesses and to the treatment to be used or not used during such treatments.
2. MEDICAL HEALTH CARE POWER OF PROXY - In response to the problems of living wills to acurately predict and describe the medical conditions to be addressed by the doctor and their failure to take into account proper medical procedures, a legal concept used in business law was adopted - the power of attorney.
3. ENHANCED DIRECTIVES - The third generation of Living Wills were more enriched documents that described situations and contained more practical descriptions of how and when treatment should be used or withdrawn. Famous examples of these are the "Values History", the "Five Wishes" and others that expressed wishes in some non-legal and more personal ways.
The problem as I see it is how to make sure that you get your directive, whichever you use, into the conversation with your doctor. Maybe more important is for you to think about this yourself so you care clear on what you want. Many of our clients are still afraid of living wills. They think it is only used to end lives early. Many don't realize that it is a tool that is only used when all other hope is gone. I tell families it is for the time when "everyone" knows that treatment is fruitless. I tell them that they will not have to really search for this as it will appear very clearly before them. There will not be any doubt. The problem with all of these documents is that, at that time when it is obvious that treatment is useless, whether the document will be available and will be agreed to and know to the doctor and whether it accurately reflects the patients wishes and whether the doctor is willing to take the requested action.
A Pennsylvania law known as Act 169 has made this process easier. This law became effective in January 2007 and authorized agents to act on behalf of patients to remove or withdraw treatment. In my opinion, this permits a principal to simply name an agents or agents to intervene in the event of terminal illness and take everything into consideration and then instruct the physician to continue or remove treatment. The physician is able to avoid liability by acting in good faith on these instructions. If the physician has an ethical conflict with the directive, he or she is obligated to assist in getting the patient to another physician. We think that this arrangement will permit the agents to intervene in these very complex situations with constantly changing medical conditions in a way that no document could predict. Agents are now being permitted to make decisions that they thought they were making under the old law but really were not. Under the old law, agents were advocates for the patient, assisting in the carrying out of the wishes contained in the directive. The new law actually authorizes the agents to step into the shoes of the patient and weigh all of the options. The decision is now in their hands. I tell my clients to choose good agents and to make sure they know how you feel about these medical decisions. Ultimately, this should result in having people treated in a manner consistent with their wishes and not simply to help the hospitals bottom line or avoid physician liability.
1. Actually make it into the medical records.
2. Acurately reflects the wishes of the patient.
3. Are seen by the attending physician ,
4. Are morally agreeable to the attending.
This is really not good news for those who have living wills and for those who think they need them. It is clearly an area of the law that is in transition. In our elder law practice, we naturally see the impact of the use or misuse of advance directives. Even the terminology is confusing. Many people get their "will" and "living will" confused. The same is true with a Power of Attorney for Health Care and Power of Attorney. Some make simple statements of what they wish to happen to them if they have an incurable illness. All of these documents can be brought under the broad category of "Advance Directives." Let's look at the history of the directive:
1. LIVING WILL - Oldest form of advance directive, dating back to 1969 and attorney Luis Kutner. In an Indiana Law Journal article Kutner proposed the use of long-standing estate law principles permitting the control of property distributions after death (by Will) in health care settings. The resulting document, which was to be used during one's life, came to be known as a "Living Will." Living Wills usually contain specific references to certain illnesses and to the treatment to be used or not used during such treatments.
2. MEDICAL HEALTH CARE POWER OF PROXY - In response to the problems of living wills to acurately predict and describe the medical conditions to be addressed by the doctor and their failure to take into account proper medical procedures, a legal concept used in business law was adopted - the power of attorney.
3. ENHANCED DIRECTIVES - The third generation of Living Wills were more enriched documents that described situations and contained more practical descriptions of how and when treatment should be used or withdrawn. Famous examples of these are the "Values History", the "Five Wishes" and others that expressed wishes in some non-legal and more personal ways.
The problem as I see it is how to make sure that you get your directive, whichever you use, into the conversation with your doctor. Maybe more important is for you to think about this yourself so you care clear on what you want. Many of our clients are still afraid of living wills. They think it is only used to end lives early. Many don't realize that it is a tool that is only used when all other hope is gone. I tell families it is for the time when "everyone" knows that treatment is fruitless. I tell them that they will not have to really search for this as it will appear very clearly before them. There will not be any doubt. The problem with all of these documents is that, at that time when it is obvious that treatment is useless, whether the document will be available and will be agreed to and know to the doctor and whether it accurately reflects the patients wishes and whether the doctor is willing to take the requested action.
A Pennsylvania law known as Act 169 has made this process easier. This law became effective in January 2007 and authorized agents to act on behalf of patients to remove or withdraw treatment. In my opinion, this permits a principal to simply name an agents or agents to intervene in the event of terminal illness and take everything into consideration and then instruct the physician to continue or remove treatment. The physician is able to avoid liability by acting in good faith on these instructions. If the physician has an ethical conflict with the directive, he or she is obligated to assist in getting the patient to another physician. We think that this arrangement will permit the agents to intervene in these very complex situations with constantly changing medical conditions in a way that no document could predict. Agents are now being permitted to make decisions that they thought they were making under the old law but really were not. Under the old law, agents were advocates for the patient, assisting in the carrying out of the wishes contained in the directive. The new law actually authorizes the agents to step into the shoes of the patient and weigh all of the options. The decision is now in their hands. I tell my clients to choose good agents and to make sure they know how you feel about these medical decisions. Ultimately, this should result in having people treated in a manner consistent with their wishes and not simply to help the hospitals bottom line or avoid physician liability.
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