By Nancy Burner, Esq.
Making end-of-life decisions is a crucial component of any estate plan. As Elder Law attorneys, we deal with these issues every day. Some advance directives are signed in an attorney’s office and some are executed with a health care provider. A short review of each document will help clarify the issues surrounding the Living Will, Do Not Resuscitate and/or Do Not Intubate, Health Care Proxy and Medical Orders for Life-Sustaining Treatment form.
The Living Will is a document which evidences an individual’s wishes regarding medical care or life support to be administered in the event their condition is terminal. There is no question that an individual has the absolute right to accept or refuse medical treatment on their own behalf.
The problem arises when the individual is incapacitated and cannot communicate their wishes. The Living Will is written evidence of the patient’s wishes. Some of the treatments that could be accepted or refused on the individual’s behalf include cardiac resuscitation, mechanical respiration, artificial nutrition and hydration, antibiotics, blood or blood products, kidney dialysis and surgery or invasive diagnostic tests. This document is always prepared for our estate planning clients, but need not be prepared by a lawyer.
Unlike the Living Will, the DNR form and procedures are governed by New York State law, and these orders are signed in a hospital, nursing home or mental health facility. (New York law also permits “out-of-hospital” DNRs in specific situations, but this is outside the scope of this article). DNR orders are only applicable to incidents of cardiac respiratory arrest and direct that no chest compression, ventilation, defibrillation, endotracheal intubation or medications be administered. A patient may express his wishes, or, if he is unable to do so, a family member, agent or friend can sign the DNR. The DNR is issued by a physician and must be on a NYS Department of Health form.
Another important directive is the Health Care Proxy. This document allows an individual to designate an agent to make health care decisions if he is unable to make these decisions for himself. The health care proxy need not be executed in an institution and it can be used anywhere. Typically, we prepare a comprehensive health care proxy for all our elder law and estate planning clients. The health care proxy applies to all medical care except artificial hydration and feeding. Therefore, the proxy should indicate if the agent is permitted to refuse hydration or feeding.
In June 2010, the state legislature passed the Family Health Care Decisions Act which permits surrogate decision-making for patients that lack capacity and have not previously signed a health care proxy and living will. However, I urge clients not to rely upon this legislation. The Act only applies to decisions in institutional settings. Advance directives will ensure that your wishes are followed in — and out — of an institution.
The MOLST form is a document executed with a physician regarding the patient’s wishes with respect to life-sustaining treatment plans. The purpose of this New York State Department of Health form is to create a dialogue between a patient with a chronic or terminal illness and their physician that will transcend the DNR and Living Will. Unlike a DNR, the MOLST form follows the patient from one health care setting to another.
For example, if an individual were transferred from a hospital to a nursing home, the MOLST form would follow them; thus ensuring that their medical wishes would be conveyed and respected consistently across care settings.
In addition to documents that permit agents to withdraw or withhold treatment, there is also a document that makes it clear that you want every treatment available. The Protective Medical Decision Document (PMDD) is a protective Durable Power of Attorney for health care decisions that specifically limits the agent’s authority to approve the direct and intentional ending of the principal’s life.
Making directives in advance is smart. It allows you to make your own decisions based upon your own beliefs and wishes. But this planning should not occur in a vacuum. Once you’ve made your decisions, beyond signing documents, you must discuss these issues with your family and health care agents. Let them understand your directions and put them in a better position to make reasonable decisions based upon your expressed wishes.
The more difficult situations arise with individuals who are disabled from birth or become disabled before they can form an intent as to their end-of-life treatments.
New York courts continue to struggle with the question, attempting to balance the rights of the patient with the state’s interest in preserving life. In a recent upstate case, the Appellate Court reversed a lower Court decision and directed that a feeding tube be inserted for a 55-year-old man, over the objection of his parents.
The subject of the case, Joseph, suffers from profound mental retardation, cerebral palsy, spastic quadriplegia, curvature of the spine and dysphagia, or the inability to swallow liquids or solids. Without the feeding tube, he would not survive. The question is whether the feeding tube should be inserted, inasmuch as Joseph was never competent to express his wishes.
The parents argued that the feeding tube would be an unreasonable burden on Joseph, as he would have to live in a new facility, leaving the group home where he resided for 27 years. He would have to be restrained to prevent him from removing the tube, which could cause medical complications.
On the other hand, there was testimony from the medical director of the group home that until his hospitalization, Joseph was alert and communicative, appeared to be without pain, was social and could live many years with the feeding tube.
In directing that the feeding tube be inserted, the court held that “the burdens of prolonged life are not so great as to outweigh any pleasure, emotional enjoyment or other satisfaction that (he) may yet be able to derive from life.”
Whether you agree or disagree with the court, the importance of this case is that it promotes discussion amongst individuals that could one day face the same or similar circumstances. Take the time and discuss this with your loved ones. Make it easier for them to make these hard decisions should the situation arise. ,
Nancy Burner, Esq. has practiced
elder law and estate planning for 25 years. The opinions of columnists are their own. They do not speak for the paper.