ADVANCE DIRECTIVES

PLANNING FOR DYING

PREPARING FOR THE ONSET OF INCAPACITYDEFINITION AND TASK• INCAPACITY OCCURS WHEN AN INDIVIDUAL IS

UNABLE TO RECEIVE INFORMATION ABOUT HIS/HER CARE, UNDERSTAND AND PROCESS ITS CONTENT, AND COMMUNICATE ABOUT HIS/HER WISHES IN LIGHT OF THE INFORMATION AVAILABLE

• CLEAR COMMUNICATION DURING THE TIME OF CAPACITY IS THE KEY TO PREPARING FOR A TIME OF INCAPACITY

• ADVANCE DIRECTIVES ARE TOOLS TO GENERATE COMMUNICATION AND “INSURE” THAT ONE’S WISHES ARE HONORED

TAKING RESPONSIBILITYPLANNING OR VICTIMIZATION

• LIVING WILL AS ADVANCE DIRECTIVE• SURROGATE DECISION MAKERS

– GUARDIAN– DURABLE POWER OF ATTORNEY FOR

HEALTHCARE AS ADVANCE DIRECTIVE– FAMILY MEMBER

• TESTS FOR SURROGATE DECISION MAKING– SUBSTITUTED JUDGMENT– BEST INTERESTS

STANDARDS FOR SURROGATE DECISION MAKINGSUGSTITUTED JUDGMENT• SURROGATE ATTEMPTS TO REPLICATE FAITHFULLY

THE DECISION THAT THE INCAPACITATED PERSON WOULD MAKE IF HE/SHE WERE ABLE TO MAKE A CHOICE

• SURROGATE LOOKS AT THE DECISION THROUGH THE “VALUE EYES” OF THE INCAPACITATED PERSON

• GROUNDED IN THE PRINCIPLE OF AUTONOMY• BASED UPON

– DIRECT STATEMENTS BY PATIENT– INFERENCES FROM VALUE CHOICES OF PATIENT

• SUBSTITUTED JUDGMENT STANDARD IS PREFERABLE BUT BEST INTEREST STANDARD IS PERMITTED AND OFTEN NECESSARY

STANDARDS FOR SURROGATE DECISION MAKINGBEST INTERESTS• SURROGATE MAKES THE DECISION, FROM AN

OBJECTIVE STANDPOINT, WHICH APPEARS TO PROMOTE A PATIENT’S GOOD WITHOUT REFERENCE TO THE INCAPACITATED PATIENT’S ACTUAL OR SUPPOSED PREFERENCES

• WEIGHING BENEFITS AND BURDENS FROM THE STANDPOINT OF A “REASONABLE” PERSON LOOKING AT THE CLINICAL OUTCOMES– “REASONABLE” = SELF-REFLECTIVE, RELATIVELY

UNBIASED, ATTEMPTING FACT-BASED OBJECTIVITY, SETTING ASIDE SELF-INTEREST

• GROUNDED IN THE PRINCIPLE OF BENEFICENCE

GUARDIANSHIPWHEN PREPARATIONS FOR INCAPACITY ARE NOT MADE• AN APPOINTMENT BY THE COURT OF AN INDIVIDUAL

WHO WILL MAKE DECISIONS FOR PATIENTS BECAUSE OF THE INCAPACITY (INCOMPETENCE) OF PATIENTS TO MAKE DECISIONS FOR THEIR OWN WELFARE

• REQUIRES PHYSICIANS TO HONOR THE DECISIONS OF THE GUARDIAN AS THEY WOULD IF THE PATIENTS THEMSELVES HAD MADE THE DECISIONS

• DISADVANTAGES– TIME-CONSUMING PROCESS– EMOTIONALLY DIFFICULT FOR THE FAMILY– PATIENT MAY BECOMES A VICTIM OF THE GUARDIAN’S

AGENDA

ADVANCE DIRECTIVESDEFINITION

• A STATEMENT (WRITTEN OR ORAL) MADE BY A PATIENT BEFORE THE ONSET OF DECISIONAL INCAPACITY WHICH INDICATES THE DIRECTION THE PATIENT WOULD LIKE HIS/HER TREATMENT TO TAKE (OR THE INDIVIDUAL WHO SHOULD MAKE SUCH DECISIONS FOR THE PATIENT) WHEN HE/SHE IS NO LONG ABLE TO PARTICIPATE IN THE HEALTHCARE DECISIONS DIRECTING HIS/HER CARE– STATEMENTS/DOCUMENTS SHOULD STIMULATE

COMMUNICATION

ADVANCE DIRECTIVESCENTRAL CHARACTERISTICS• SPECIFICITY - - - REGARDING TREATMENTS

AND/OR OUTCOMES– CLARITY OF WISHES ABOUT TREATMENTS– CLARITY OF WISHES ABOUT POSSIBLE OUTCOMES– DIFFICULTY IN ACHIEVING SPECIFICITY– RECOMMENDATIONS - - - MINIMALLY ADDRESS

CPR/DNR, ARTIFICIAL NUTRITION/HYDRATION, PAIN CONTROL

• CREDIBILITY - - - REGARDING INTENT AND VALUE CONTEXT– MOTIVATION AND INTENTION OF AUTHOR– BELIEFS OF THE AUTHOR– INSUFFICIENCY OF SIGNATURE ON A FORM

KINDS OF ADVANCE DIRECTIVESUNWRITTEN• INFORMAL STATEMENTS MADE TO

FAMILY AND FRIENDS– INEFFECTIVE IN CASES OF CONFLICT

• STATEMENTS MADE TO PHYSICIANS WHICH ARE DOCUMENTED IN THE PATIENT’S CHART– SAME STATUS AS WRITTEN ADVANCE

DIRECTIVES

KINDS OF ADVANCE DIRECTIVESWRITTEN LIVING WILL DECLARATIONS• A DOCUMENT WRITTEN AND/OR SIGNED BY

INDIVIDUALS WHILE THEY ARE CAPABLE OF MAKING DECISIONS ABOUT THEIR HEALTHCARE WHICH ORDINARILY DIRECTS THEIR PHYSICIANS TO USE RESTRAINT IN EMPLOYING AGGRESSIVE TREATMENTS TO PROLONG THEIR LIVES IF THEY ARE IN A TERMINAL OR IRREVERSIBLE CONDITION AND UNABLE TO MAKE DECISIONS ON THEIR OWN BEHALF AT THE TIME THE TREATMENTS ARE BEING CONSIDERED.

KINDS OF ADVANCE DIRECTIVESAPPOINTMENT OF AN ATTORNEY-IN-FACT IN A DURABLE POWER OF ATTORNEY FOR HEALTHCARE• A DOCUMENT SIGNED BY INDIVIDUALS

WHILE THEY ARE CAPABLE OF MAKING DECISIONS ABOUT THEIR HEALTHCARE DESIGNATING A PERSON WHO WILL HAVE AUTHORITY TO MAKE HEALTHCARE DECISIONS FOR THEM IN THE EVENT THAT THEY MIGHT BECOME INCAPABLE OF MAKING THOSE DECISIONS AT THE TIME THEY ARE BEING CONSIDERED.– IMPORTANCE OF TRUST

POWER OF ATTORNEYTERMINOLOGY• PRINCIPAL

– THE PERSON WHO APPOINTS ANOTHER TO ACT ON HIS/HER BEHALF

– [THE PATIENT IN HEALTHCARE MATTERS]

• ATTORNEY-IN-FACT– THE PERSON WHO IS APPOINTED TO ACT ON

BEHALF OF ANOTHER WHEN THE OTHER IS INCAPABLE OF ACTING ON HIS/HER OWN BEHALF

– [THE SURROGATE/PROXY IN HELATHCARE MATTERS]

POWER OF ATTORNEY REGULAR POWER OF ATTORNEY• APPOINTMENT OF ANOTHER TO

PERFORM SPECIFIC TRANSACTIONS– E.G., SELL PROPERTY, MANAGE

FINANCIAL AFFAIRS

• AUTHORITY CEASES WHEN PRINCIPAL BECOMES INCOMPETENT (LOSES DECISIONAL CAPACITY)

POWER OF ATTORNEYDURABLE POWER OF ATTORNEY

• APPOINT OF ANOTHER TO PERFORM SPECIFIC TRANSACTIONS– E.G., SELL PROPERTY, MANAGE

FINANCIAL AFFAIRS

• AUTHORITY CONTINUES PAST THE ONSET OF INCOMPETENCE (LOSS OF DECISIONAL CAPACITY) OF THE PRINCIPAL

POWER OF ATTORNEYSPRINGING DURABLE POWER OF ATTORNEY• APPOINTMENT OF ANOTHER TO PERFORM

SPECIFIC TRANSACTIONS– E.G., SELL PROPERTY, MANAGE FINANCIAL

AFFAIRS– HEALTHCARE DECISIONS

• AUTHORITY BEGINS ONLY WHEN THE PRINCIPAL BECOMES INCOMPETENT (LOSES DECISIONAL CAPACITY)

• DURABLE POWER OF ATTORNEY FOR HEALTHCARE

WHY AN ADVANCE DIRECTIVE• TO EXTEND THE AUTHORITY OF THE PATIENT BEYOND THE

ONSET OF DECISIONAL INCAPACITY• TO EXPRESS CLEARLY THE WISHES OF THE PATIENT SO

THEY WILL BE HONORED BY CAREGIVERS, FAMILIES, AND OTHERS– TO AVOID BECOMING A VICTIM OF ANOTHER’S AGENDA

• ARBITRARY DECISIONS PATIENT WOULD NOT WANT• DECISIONS MADE OUT OF GUILT OR FEAR• PRESSURE FROM SPECIAL INTEREST GROUPS• PROTRACTED OR UNDESIRABLE COURT DECISIONS

• TO AVOID THE NECESSITY OF GOING TO COURT --- OFTEN INAPPROPRIATE DECISIONS

• CONSERVE RESOURCES, PARTICULARLY WHEN FURTHER TREATMENT IS FUTILE

TYPES OF ADVANCE DIRECTIVESINFORMAL STATEMENTS

• ADVANTAGES– INSURES

COMMUNICATION HAS OCCURED

• DISADVANTAGES– NO

DOCUMENTATION IN CASE OF CONFLICT WHEN ADVANCE DIRECTIVE IS TO BE IMPLEMENTED

– OFTEN CASUAL COMMENT WITH LITTLE REFLECTION OR SPECIFICITY

TYPES OF ADVANCE DIRECTIVESDOCUMENTED STATEMENTS TO PHYSICIANS

• ADVANTAGES– NO NEED TO LABOR

OVER A WRITTEN DOCUMENT

– NO NEED TO SECURE WITNESSES TO A SIGNED DOCUMENT

– CAN DISCUSS IMMEDIATELY TREATMENT DIRECTIONS WITH PHYSICIAN

• DISADVANTAGES– PHYSICIAN’S

RECORDS MAY BE INACCESSIBLE WHEN THEY ARE NEEDED, E.G., RETIREMENT

– STATEMENTS MADE TO SEVERAL PHYSICIANS MAY CONFLICT

TYPES OF ADVANCE DIRECTIVESLIVING WILL DECLARATIONS

• ADVANTAGES– DOCUMENTED PROTRAIT OF

PATIENT’S WISHES AND VALUES

– PROMOTES AUTONOMY BEYOND OF POINT OF INCAPACITY

– ENHANCES REFLECTIVE LIFE OF AUTHOR

– PROMOTES DIGNITY BY ALLOWING RISK-TAKING BY AUTHOR

– ACCEPTS CONTEXT OF NATURAL RHYTHMS OF LIFE

• DISADVANTAGES– IMPOSSIBLE TO

ANTICIPATE ALL CONTINGENCIES

– NO COMPETENT PERSON WITH AUTHORITY TO ASSESS PARTICULARS OF A CLINICAL SITUATION AND MAKE DECISIONS

– LACK OF SPECIFICITY IF “GENERIC” FORM IS USED

– LACK OF CREDIBILITY IF INTENTIONS AND VALUES OF AUTHOR ARE UNKNOWN

TYPES OF ADVANCE DIRECTIVESLIVING WILL DECLARATIONS

• ADVANTAGES (CONT.)– CAN GENERATE AVENUES

OF COMMUNICATION• AUTHOR AND SIGNIFICANT

OTHER/CAREGIVERS

– PROTECTION FROM UNDESIRED INTERVENTIONS

– RELIEVES SECOND GUESSING

– RELIEVES GUILT AND FEAR– PROMOTES CONTINUITY OF

CARE– MAY BE COST EFFECTIVE

• DISADVANTAGES (CONT.)– FREQUENTLY LITTLE

COMMUNICTION OCCURS WITH SIMPLY SIGNING A FORM

TYPES OF ADVANCE DIRECTIVESDURABLE POWER OF ATTORNEY FOR HEALTHCARE• ADVANTAGES

– DESIGNATES A PERSON THE PATIENT TRUSTS

– GIVES DECISIONAL AUTHORITY TO INDIVIDUAL WHO CAN ASSESS SPECIAL CIRCUMSTANCES IN THE CLINICAL SITUATION

– IDENTIFIES AN INDIVIDUAL WITH AUTHORITY WITH WHOM PHYSICIAN CAN COMMUNICATE

• DISADVANTAGES– IF NO CLEAR

COMMUNICATION BEFORE INCAPACITY, PATIENT COULD BECOME VICTIM OF ATTORNEY-IN-FACT’S AGENDA

– WITHOUT DOCUMENTATION PHYSICANS CAN QUESTION IF ATTORNEY-IN-FACT IS TRULY REPRESENTING PATIENT’S WISHES

– WITHOUT DOCUMENTATION OTHERS MAY OBSTRUCT ATTORNEY-IN-FACT’S DECISIONS

TYPES OF ADVANCE DIRECTIVESDURABLE POWER OF ATTORNEY FOR HEALTHCARE

• ADVANTAGES– REQUIRES PHYSICIANS

TO HONOR DECISIONS OF ATTORNEY-IN-FACT AS THEY WOULD IF THE PATIENT HIMSELF/HERSELF HAD MADE THE DECISIONS

– REDUCES FEAR OF LAWSUIT BECAUSE OF AUTHORITY OF DECISION-MAKER

• DISADVANTAGES– WITHOUT PRIOR

COMMUNICATION AND DOCUMENTATION ATTORNEY-IN-FACT MAY HESITATE TO MAKE NECESSARY DECISIONS BECAUSE OF GUILT

– WITHOUT DOCUMENTATION AUTHORITY OF ATTORNEY-IN-FACT MAY BE WEAKENED

• A WELL-DESIGNED LIVING WILL MAY NEUTRALIZE DISADVANTAGES

ADVANCE DIRECTIVESMOST POWERFUL PROTECTION• SIGN THE STATE-APPROVED LIVING WILL

DECLARATION FORM• APPOINT AN ATTORNEY-IN-FACT IN A DURABLE

POWER OF ATTORNEY FOR HEALTHCARE DECISIONS USING THE STATE-APPROVED FORMS

• SPECIFY INTENTIONS AND WISHES IN A DOCUMENTED WAY AND BE AS CLEAR ABOUT THEM AS POSSIBLE

• CONVERSE OPENLY AND HONESTLY WITH PHYSICIAN, FAMILY, AND SIGNIFICANT OTHERS ABOUT YOUR WISHES

• REASSESS WISHES PERIODICALLY AS LIFE CIRCUMSTANCES AND HEALTH CONDITIONS CHANGE