James Schorner & Associates, Vero Beach Florida
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Saturday, September 23rd, 2017

Advance Directives

HEALTH CARE DIRECTIVES
All You Need to Know about Caring for Yourself or Others in the End Times

Living wills/Health Care Directives - the benefits and limitations

Famous court cases:

Karen Quinlan - swallowed tranquilizers and alcohol at a party and fell into a persistent vegetative state. This was one of the first cases for termination of artificial life support. After going to the NJ Supreme Court, the parents were able to terminate the respirator. Karen lived for 10 more years in a coma without it before her death. The court first considered the prospect that a guardian could be appointed to make the decision for the incapacitated person that would lead to their death. This lead the adoption of living will statutes in all of the states.

Nancy Cruzan - Missouri holding that a woman in a persistent vegetative state from an automobile accident who had not prepared a living will would not have artificial life support ended by her parent's request because the statement she made to a roommate as to her wishes was not adequate. The state's living will statute must be followed.

Terri Schiavo - 15 years of litigation are now over. This young Florida girl was in a persistent vegetative state since 1990. She had no living will. Her husband, the natural guardian, made the decision that she would have decided to terminate artificial life support were she able of communicating. Her parents disagreed with his decision even though it was approved by the Florida courts. The legislature and the governor in a publicity invoking measure attempted to overturn the court's decisions by the Florida law that was passed by the legislature and signed by the governor. The Florida Supreme Court subsequently determined that this law was unconstitutional and ordered artificial life support removed. The governor applied to the US Supreme Court to review the case who determined that the law was an unconstitutional attempt to overrule the decision of the judiciary, a violation of the separation of the three governmental bodies. The parents appealed to the federal courts who refused to stay the order because no new testimony was presented to controvert the court's finding that she was in a persistent vegetative state. Finally, the feeding tube was removed and she died peacefully. Wouldn't it have been better for her to have a written declaration of her wishes and to have discussed them with her husband and her parents. The major contention was whether or not she was in a persistent vegetative state. The minor controversy was what her wishes were. The parents stated that she was a staunch Catholic, the Pope was against this and so would she have been.

You specify your wishes: "Dying not be artificially prolonged by treatments such as cardiopulmonary resuscitation, artificial kidney, respirator, and medications including antibiotics when they will not significantly improve my comfort." Additionally you have the option to specify whether or when you wish artificial feeding (through a tube) and hydration via intravenous needle.

Nothing happens automatically, rather your wishes are considered by the person you specify in the health care surrogate designation and this person makes the decision. If your living will would say discontinue life support but your surrogate says keep it going, life support will not be discontinued.

The living will applies only when you are in a terminal condition, an end-stage condition, or a persistent vegetative state and

When your physician and another consulting physician have determined that there is no medical probability of recovery from such condition

The living will does not promote euthanasia. It does not allow someone to take your life or to kill you directly. Rather, you have the right to refuse any medical treatment. If such refusal results in your death, that is your right.

The living will does not consider your "quality of life." It is effective only when you are in a terminal condition, meaning that you will die from your illness soon.

Hospitals are required to ask for a copy of your living will upon admission as a condition to receive federal funds such as Medicare so they always do so.

Health Care Surrogate appointment - a very important decision

Appoint a person who shares the same outlook on these matters as you do.
Discuss your wishes with your agent when you make your documents and from time to time thereafter.

The goal of the surrogate is to make the same decision that you would make were you able to make and communicate your decision.

It's a good idea to let others know your wishes as well as your surrogate, especially if you have a person in your family in the same relationship as your surrogate who might feel differently.

DNR - Do not resuscitate order - how this differs from the above.

The DNR is a doctor's order made in consultation with the patient and his family that resuscitation would not be in the patient's best interest but would be part of the natural process of dying.

Emergency personnel will resuscitate a person with a living will because two doctors have not yet made the decision that the person has no realistic prospect of recovery however they will not resuscitate a person with a DNR because it is a doctor's order.

You only need a DNR when you are already in an end stage disease but then it is essential to carry out the patient's wishes.

Sample documents:

Schorner & Associates preferred form - we use this because it is simple, requires no further thought or direction by the maker yet it states the desired goal and appoints a surrogate.

Five Wishes - a more involved document designed to be filled out by the maker and gives not only the necessary legal authority but also patient care instructions on how they would like to be treated while in their last days.

Indian River Memorial Hospital form - this form asks for specific instructions on a wide variety of potential situations, it requires considerable thought and time to complete it fully.

The bottom line - Everyone should have a living will giving their direction, even if it is to continue life support regardless of the prospect of recovery. They should also appoint someone to carry out their wishes. I suggest that this be done in the last month of high school, when many of the students will have attained age 18 and have the legal capacity to do so. We could include it in health or science class.

You may copy this from your browser into your word processor, fill in the blanks and sign.

 

HEALTH CARE DIRECTIVE

(Living Will & Designation of Health Care Surrogate)


I, ______________________________, willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare:

If at any time I should have a terminal condition, an end-stage condition, or am in a persistent vegetative state, and if my attending or treating physician and another consulting physician have determined that there is no medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to artificially prolong the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.

It is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and to accept the consequences for such refusal.

If I have been determined to be unable to provide informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures, I wish to designate ____________________________ as my surrogate to carry out the provisions of this declaration.

If my designated surrogate is unwilling or unable to perform these duties, I wish to designate ____________________________________ as my alternate surrogate.

In addition to the above provisions dealing with my medical treatment while in a terminal condition, end-stage condition, or persistent vegetative state, I also appoint my surrogate (or the alternate, if my surrogate is unwilling or unable to perform) to be my agent for making health care decisions during any period that I have been determined to be incapable of providing informed consent for medical treatment and surgical and diagnostic procedures. This durable power of attorney shall not be affected by my disability.

I fully understand that this designation will permit my surrogate to make health care decisions, except for anatomical gifts, unless I have executed an anatomical gift declaration pursuant to law, and to provide, withhold, or withdraw consent on my behalf; to apply for public benefits to defray the cost of health care; and to authorize my admission to or transfer from a health care facility.

If I should have an incurable or irreversible condition, for which medical intervention serves only to postpone the moment of death, and I am unable due to unconsciousness or dementia to refuse such treatment, then let this declaration serve as a considered refusal of such treatment. Examples of such treatments which are refused are cardiopulmonary resuscitation, artificial kidney, respirator, and medications including antibiotics when they will not significantly improve my comfort. This is not meant to be a complete listing. My Agent for making health care decisions, after consultation with my physician or physician of his/her own choosing, may use his/her best judgment to distinguish between treatments that are humane and those that only postpone the moment of death.

Specifically in regard to nourishment and hydration:

If I am incompetent but conscious and unable or unwilling to eat or be fed in the usual manner, I refuse tube feeding through my nose or throat or through any surgical insertion of a tube, or through intravenous feeding except as is necessary to provide comfort only, but not to maintain life, as determined by my attending physician and approved by my Agent.

If I am unconscious and am being sustained by tube or intravenous feeding, once my physician and a consultant (with special competence in neurology) have established that there is no reasonable likelihood that I will ever return to a conscious state with the ability to be oriented and to interact in a reasonably unimpaired way with my environment (such as the condition sometimes called the persistent vegetative state), I declare my wishes to have such artificial feeding withheld or withdrawn. I am aware that this may hasten my death, but consider it against my interest and the interests of my survivors to have my body artificially maintained after reasonable hope of mental recovery is gone.

In exercising this authority, my Agent shall follow my desires as stated in this document or otherwise known to my Agent. In making any decision, my Agent shall attempt to discuss the proposed decision with me to determine my desires if I am able to communicate in any way. If my Agent cannot determine the choice I would want made, then my Agent shall make a choice for me based upon what my Agent believes to be in my best interests. My Agent's authority to interpret my desires is intended to be as broad as possible. Accordingly, in addition to the above, my Agent is authorized as follows:

To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical procedures, diagnostic procedures, medication, and the use of mechanical or other procedures that affect any bodily function, including (but not limited to) artificial respiration, nutritional support and hydration, and cardiopulmonary resuscitation;

To have access to medical records and information to the same extent that I am entitled to, including the right to disclose the contents to others. This power specifically allows my Agent to obtain all my medical records and information including, but not limited to, those covered by the Health Insurance Portability and Accountability Act of 1996 and any other such law;

To authorize my admission to or discharge (even against medical advice) from any hospital, nursing home, residential care, assisted living or similar facility or service;

To contract on my behalf for any health care related service or facility on my behalf, without my Agent incurring personal financial liability for such contracts;

To hire and fire medical, social service, and other support personnel responsible for my care;

To authorize, or refuse to authorize, any medication or procedure intended to relieve pain, even though such use may lead to physical damage, addiction, or hasten the moment of (but not intentionally cause) my death;

To take any other action necessary to do what I authorize here, including (but not limited to) granting any waiver or release from liability required by any hospital, physician, or other health care provider; signing any documents relating to refusals of treatment or the leaving of a facility against medical advice, and pursuing any legal action in my name, and at the expense of my estate to force compliance with my wishes as determined by my Agent, or to seek actual or punitive damages for the failure to comply.

Should any other specific direction of this Declaration be held to be invalid, then such invalidity will not affect the Declaration.

I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration. I further affirm that this designation is not being made as a condition of treatment or admission to a health care facility.

Dated this _____ day of ____________, ____________.

__________________________________

The declarant is known to me, and I believe him to be of sound mind.


_________________________________ ____________________________________

Witness                                                         Witness

 

Schorner & Associates
www.JSchorner.com

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