To the left: Bridge at Cumberland State Park, Pikeville
Advance directives are among the most misunderstood and misapplied of legal documents. This discussion will explain why, making the following points:
The Three Kinds of Document are Quite Different.
All too often, when the time comes to put the documents into effect, neither patients, nor their families, nor their doctors understand the most significant difference between a living will and a health care power of attorney. (These are the two principal types of document. The third is discussed below.)
The distinction lies in the naming of the person who has the final decision about whether to start or continue life-prolonging medical treatments when the patient is not able to make decisions. Many people seem to think that the family (typically the spouse) has the final authority regardless of which type of document is used.
Actually, in the usual form of living will, the patient directs the attending physician to stop treatments at a certain point, such as confirmation of a terminal condition or permanent unconsciousness. The spouse or other family member has no authority to overrule the patient’s decision or the doctor’s implementation of it.
By contrast, in the usual form of health care power of attorney, the patient gives a specific person -- not the doctor and perhaps not even the spouse -- the decision-making role.
The third type of document -- an advance directive -- is a legal chameleon. It can take the form of a living will, a health care power of attorney or, more commonly, both.
The Health Care Power of Attorney is the Superior Document.
This is true when a client trusts another person to make decisions that he or she would make, and the person will do so firmly. In these circumstances, a living will is unnecessary.
Physicians seem correct in stating – as they often do -- that legislatures and lawyers can only envision the broad contour of the circumstances that give rise to decision-making at the end of life. Fashioning a meaningful living will presents legal difficulties that can be insurmountable.
A health care power of attorney presents none of these problems. It chiefly says that one person authorizes another to make all of the decisions that the first could make about health matters. That is a very simple and powerful statement.
The Health Care Power of Attorney is not Entirely Free of Problems.
Most of the difficulties with health care powers of attorney are human more than legal. To illustrate, a few health care representatives cannot make decisions independently or at all. They may do whatever doctors say without consideration of alternatives, risks and benefits. Some may postpone decisions until events overtake them. Others may allow other family members to overrule the conclusions they have reached.
There can be legal questions too. Sometimes, representatives do not know if they have the power to decide whether (as well as when) life support should be discontinued. The latter point is not often highlighted or emphasized in documents. Fortunately, the document usually gives the power to make both kinds of decisions. It thus places a responsibility on the patient to communicate orally (or in another writing) his or her wishes about whether or when to use life support.
Problem: what if the patient says nothing? Usually, the document itself or state law dictates that the representative make a judgment about what the patient would have wanted. If the representative cannot discern what the patient’s decision would have been, he or she can then make a judgment about what is in the best interest of the patient. What is not permitted is a decision based on what the representative believes appropriate.
Naming More than One Health Care Representative to Act at the Same Time is Acceptable.
Most documents contemplate a single decision-maker and an alternate representative if the first is unable or unwilling to act. Family dynamics may suggest that several persons be given authority. The problem of selection is especially acute when there are children by multiple marriages.
While statutes and most lawyers offer documents on the assumption that it is better to have one person at a time making health care decisions, this is a matter that can only be resolved by the person who signs the document. We prefer multiple decision-makers if the patient fears that family harmony would be impaired without them.
A Living Will Based Solely on Statutes Often Will Be Inadequate.
The primary reasons for the inadequacy of living wills based on statutes are three:
• Documents often use ambiguous terms like “terminal condition” that are insufficiently defined or vary in meaning from state to state.
• Statutes usually do not reflect full range of medical circumstances. Dementia is addressed, for example, in only a handful of statutes.
• Treatments are seldom addressed individually in statutes, with the exception of artificial food and water. Some patients want dialysis, for example, but not cardiopulmonary resuscitation.
Seldom does the document exercise the full range of constitutional and common law rights. It could say, for example, that the person wants no medical treatment when two physicians believe treatment would be futile. It could say that he or she does not want any treatment that would not cure a progressive illness in its final stages. It could say that cardiopulmonary resuscitation is never to be used but antibiotics are always desired.
A living will with these more expressive statements is colloquially described as a common law document, but doctors and lawyers are hesitant to use it. They believe – mistakenly -- that physicians and hospitals will not be exempt from liability unless the narrower and more restrictive statutory forms are used.
Note well: an occasional living will contradicts health care powers of attorney, especially about who has the final decision-making ability. A few statutes envision this possibility. Some say that the living will prevails. Others provide that the health care power of attorney does. Still others say that the document signed later (either one) is of superior force. These are unnecessary complications caused by lawyers’ occasional failures to harmonize documents.
Living Wills Are Frequently Trumped by the Wishes of Families. There is no Legal Basis for this Result.
A living will is a commandment to doctors not to treat at a certain point, though it is also addressed to family members and other persons in some cases.
Physicians may not know that they must implement the patient’s decisions over the objections of a family member. More likely, they may not want to do so. They reluctantly face the unpleasant problem of the strong-willed daughter from Iowa who appears at the Florida hospital where her mother is dying. She then gives instructions contrary to the document she has never seen but which has indeed been signed by her mother. A living will puts a doctor in the middle of an unwelcome dilemma.
The result: almost invariably doctors and hospitals bow to the wishes of the threatening family member and disregard the instructions of the patient who can no longer speak for himself or herself.
Despite their shortcomings, living wills can be of help when there is no suitable representative who can be selected. They are also useful when housed inside an advance directive. In the latter circumstance, they avoid the conflict of one document with the other. But it is difficult to think of other suitable uses.
Not All Advance Directives -- Even Those of the Same Type --Say the Same Thing.
An advance directive may simply contain the limitations of a living will then add a health care power of attorney. To illustrate, it may say that no medical treatments are to be administered in the situation where a patient is in the final stages of a terminal illness. What then is to happen when the patient is in a coma or a vegetative state? It could last for days, months, or years. Does the health care representative have the authority to make decisions not to start or continue life support when a patient is in one of these other medical states? Many documents resolve these matters. Others might not.
Any Form of Advance Directive Signed in One State is Legally Effective in Another.
Many statutes say as much. Altogether, 41 states have legislation specifically requiring that a living will, a health care power of attorney, or both, from another state be honored within their borders.
Moreover, the federal constitution compels the national recognition of other documents -- contracts, deeds and wills, for example -- except in rare instances when a state’s fundamental policies are violated. The doctrine of comity and the Full Faith and Credit Clause of the U.S. Constitution facilitate a national system of justice on important matters and compel the inclusion of advance directives within it.
Finally, in no instance has a court in any state determined that a written document signed (within its borders or outside them) by a competent person fails to meet the clear-and-convincing standard of proof for determining whether a person has exercised the right to refuse medical treatment.
Artificial Food and Water May Be Withheld or Withdrawn.
A few state statutes require a specific decision one way or the other concerning a person’s desire to have artificial food and water. Others do not differentiate between these and other forms of life-prolonging treatment. But no state prohibits the withholding or withdrawing of artificial food and water in a document signed by a competent person. There are no constitutional or common law limitations on the withholding or withdrawal of artificial food and water.
Pain Medication and Other Forms of Comfort Care Must Still Be Given if Life Support is not Selected.
Many documents say so, and most laws do too. This is a point to remember if a physician or hospital ever balks at morphine in doses sufficient to relieve the severe pain that sometimes besets dying persons.
A Photocopy can be Ignored unless the Original Document Says Otherwise.
Advance directives are commonly placed in safe deposit boxes. Mistake! A doctor or hospital may rightfully say that copies of these documents have no greater effect than copies of passports and driver’s licenses. They have no way to know whether the patient changed his or her mind and destroyed the original. Only five states allow advance directives to be placed in public records. Even they do not deal with the problem of decision-making during the 128 hours out of the 168 each week when state and county buildings are not open.
As a practical matter, doctors and hospitals seem to rely upon photocopies, faxes, second-hand written reports, and oral statements to an astonishing degree. It seems likely that courts will decide this is ethically and legally permissible. Time may be short. Tension may be high. There may be other patients in similar conditions. There may be no obvious signs of duplicity. Absent these circumstances, a physician or hospital takes a frightful risk in not having, reading, and acting upon an original document.
An Oral Statement Can Override a Written Advance Directive. But Physicians and Hospitals Should Be Careful in Deciding whether the Patient Has Changed his or her Mind.
Patients are allowed to change their minds at any time and for any reason, orally or in writing, by specific legislation in most jurisdictions. Courts almost certainly will concur when making analyses of constitutional and common law.
This is as it should be. Yet, it presents the physician with a dilemma. Should he or she accept the statement of the nurse or the niece who may (or may not) have heard the patient clearly express a different desire for treatment? This is the problem of hearsay evidence.
Unfortunately, the law has erected fewer safeguards for the hospital room than it has for the courtroom. Our view is that doctors, hospitals and nursing homes should rely only on the written document unless:
• The attending physician has seen or heard the patient express a change of mind.
• The attending physician has received a written statement from another doctor (not a nurse who may have less training in understanding the ambiguity that can surround communications with the very ill) that the patient changed his or her mind.
• The attending physician has received a written statement from a family member who has the closest relationship to the patient (such as a child and not the niece who is visiting with the child at the patient’s bedside) that the patient changed his or her mind.
The rationale is similar to that for the hearsay rule of evidence in lawsuits. Second-hand testimony is often unreliable. Listeners may hear selectively. A nod of the head may be ambiguous in meaning. Words and gestures should be accepted only when there is good reason, such as another doctor’s knowledge about when a patient is competent and has made unguided statements contrary to those he or she expressed previously.
Signing an Advance Directive does not Authorize Assisted Suicide or Mercy Killing.
Although U.S. Supreme Court decisions confirm that states may make their own rules in this regard, all but one have prohibited assisted suicide. All forbid mercy killing. No living will or health care power of attorney can override a statute with these prohibitions. They are constitutional.
Copyright 2003 by Whitney Durand. Used with permission.