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As a lawyer who does a lot of work for hospitals, I am often contacted to discuss sad situations in which hospital patients can't make decisions for themselves, and there is confusion or uncertainty regarding who can make decisions for them.  Had one of those calls today.

I wouldn't get any of these calls if these patients had signed advance directives.  If you haven't created these for yourself, you most certainly should.

I've found that many people are confused about what advance directives are (or are not).  Many people are shocked to learn that in many states (including my home state of Ohio), a familial relationship (for example, husband and wife) does not automatically give one person in the relationship the ability to make decisions for the other person, when the other person is incapacitated (the exception to this is the right of parents to make medical decisions for their children).

Advance directives let people choose who will make decisions for them when incapacity strikes, thereby avoiding confusion, delays in treatment, fights between friends and family members, the involvement of courts, and a variety of other problems (and I've seen them all).

For gay couples in states that don't recognize same sex marriage (or a civil equivalent that gives same sex partners equal rights in this area), it's doubly important to have advance directives in place.

There are two main types of advance directives:  living wills and durable powers of attorney for health care.  Simple explanations (which may vary slightly from state to state):

  1.  Living will - you give another person the right to decide when to discontinue life support and let you die, when:  (1) you are unable to make the decision yourself, and will likely never recover enough to make the decision; and (2) your physicians have certified that you have a terminal illness and will not recover.  Some states require some extra steps to give the right to discontinue artificial feeding and hydration.

A living will is not a "will," as that term is commonly used.  A will is used to dispose of your assets when you die, and perhaps to nominate guardians for your children.  A will does not give anyone the right to make medical decisions for you.  Likewise, a "living will" is only about medical decisions, and has nothing to do with what happens to your assets after you die.

  1.  Durable Power of Attorney for Healthcare (DPOAHC) - you give another person the right to make medical decisions for you when you are unanble to even if you are expected to recover.  For example, if you are brought to an emergency room unconscious from a heart attack, the person you name in your DPOAHC can speak with your doctors and decide which treatment should be given to you.

A common misconception is that the person you name in your DPOAHC can always make medical decisions for you.  Not true:  the person you name only has decision making authority when you are not able to make decisions for yourself.

A DPOAHC is different from a regular power of attorney of the sort that is usually used in estate planning (together with a regular will).  By using a regular power of attorney, you are giving another person the right to manage your non-medical affairs (e.g., to write checks on your bank account to pay your bills).  Regular powers of attorney generally do not confer medical decision making authority (and even when they do, they usually fall short in meeting state law requirements for conferring medical decision making authority).

So:  if you want to avoid problems in the event that you can't make medical decisions for yourself, complete both a living will and durable power of attorney for healthcare.  Discuss your philosophy and wishes with the person that you appoint to make medical decisions when you are not able to.  Provide copies of the signed documents to the person you name, your doctor, and (if possible) the person who processes your admission to a hospital or surgery center for a procedure.

You can find free forms for your state here.

I've had hundreds of calls about what course of action could be taken for patients who had lost their capacity to make their own medical decisions.  You can save your loved ones anguish, and make sure that your own wishes are respected, by completing these forms.

Originally posted to Tailfish on Sat May 29, 2010 at 07:45 PM PDT.

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Comment Preferences

    •  Thanks for posting this! (7+ / 0-)

      One other thing, but it probably ought to be done by a lawyer, is almost everybody ought to have a will.  Certainly anybody with dependent children, if only to appoint guardians.
      Also, as a law student pointed out to me, anybody who gets killed by the obvious negligence of a 'deep pocket' instantly has an estate worth something in the mid six figures if not more.  Even if you didn't have two dimes to rub together, if for example a Greyhound bus runs you over their insurance will be happy to settle with your estate for several hundred thousand dollars.
      I'm a doctor, and I don't often look for business for lawyers, but this is an exception -- sort of.  If that commercial airliner falls on you and you don't have a will, a good hunk of that six figure settlement is likely to be eaten up by legal fees.

      We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

      by david78209 on Sat May 29, 2010 at 08:34:21 PM PDT

      [ Parent ]

      •  Interesting point. (3+ / 0-)
        Recommended by:
        Creosote, raines, david78209

        I'd never thought of that.

        Also, if somebody dies intestate (without a will), it's likely hir estate, whatever it consists of, will be held up in probate for months and months.  Even if it's obvious who the inheritor(s) should be, even if there is no family squabbling, it takes a lot longer for things to be sorted out and legal ownership to change hands.

        I happen to know good lawyers, of the sort that may not take chickens in payment, but have been known to take barter.  Find one, and you shouldn't have to pay through the nose for a simple will.

        My comments may not be used for any purpose without explicit permission.

        by cai on Sat May 29, 2010 at 09:23:52 PM PDT

        [ Parent ]

        •  It doesn't hurt to get one of those write your (1+ / 0-)
          Recommended by:

          ... own will books or programs, do a first draft yourself, and take it to a lawyer to make sure it says what you wanted it to say.

          A big part of writing someone a good will is being a good interviewer, and asking not just if the client has assets and children, but also if you have some rich uncle who might leave you his oil well or Swiss bank account after you've gotten senile but before you die.  Reading a book about wills can jog all those memories and odd connections to the surface of your memory before you start using expensive lawyer time.

          We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

          by david78209 on Sun May 30, 2010 at 10:23:10 AM PDT

          [ Parent ]

          •  And some lawyers... (1+ / 0-)
            Recommended by:

            ... have a set rate for wills, rather than charging by the hour.  That's also a good way to make sure you stay within budget.

            My comments may not be used for any purpose without explicit permission.

            by cai on Sun May 30, 2010 at 04:05:00 PM PDT

            [ Parent ]

  •  Thanks for this (5+ / 0-)
    Recommended by:
    Woody, Creosote, SlackwareGrrl, cai, Tailfish

    My mother in law didn't have either of these set up, but we were able to get her paperwork all filled out finally so we feel better, at least, that we'll be the ones called, instead of her new husband, who is (last time we knew) somewhere in Canada.

    You only live once, but if you do it right, once is enough. --Mae West

    by CA coastsider on Sat May 29, 2010 at 08:19:24 PM PDT

  •  Good info! (5+ / 0-)
    Recommended by:
    Woody, Creosote, SlackwareGrrl, cai, Tailfish

    and I needed the reminder to revise the living will done years ago. Back then, I assigned decisions to my son and daughter. Now I have decided to re-assign to a friend who thinks along the same lines I do about not extending care if the patient is severely incapacitated. The decisions I prefer could be difficult for my children to make, and cause friction between them.

    Slavery is the legal fiction that a person is property. Corporate personhood is the legal fiction that property is a person. -Jan Edwards

    by SoCalSal on Sat May 29, 2010 at 08:31:42 PM PDT

  •  Advanced Directives for pregnant women too. (3+ / 0-)
    Recommended by:
    Woody, Creosote, Tailfish

    In light of the Sister McBride excommunication, it makes sense that women who are TTC or pregnant set up advanced directives for their pregnant selves.

    Also, unless a woman subscribes to the pro-life position of the Roman Catholic Church, she might be better off choosing NON-Catholic hospitals for pregnancy, labor and delivery. There's no guarantee that Bishops Olmstead will consider the mother's life. Bishops like him would rather see women die.

    •  Unfortunately (1+ / 0-)
      Recommended by:

      the life  of the fetus supercedes the life of the mother in most cases, so advance directives do not apply to pregnant women.  Advance directives only come into play when you cannot make your own decisions.  What you are referring to is an entirely different situation and needs to be addressed differently.  But I agree with you in general.

      "Women are like angels. And when someone breaks our wings, we simply continue to fly... on a broomstick. We're flexible like that." ~ Anonymous

      by CorinaR on Sat May 29, 2010 at 08:55:13 PM PDT

      [ Parent ]

      •  What do you mean the life of the (0+ / 0-)

        fetus supercedes the life of the woman?  By whose reckoning?  In which states?  (Some, I'll grant you, but not all.)

        My comments may not be used for any purpose without explicit permission.

        by cai on Sat May 29, 2010 at 09:10:18 PM PDT

        [ Parent ]

        •  In Texas and NM (2+ / 0-)
          Recommended by:
          Creosote, cai

          I know for sure because I have worked there.  Advance Directives/Living Wills come into effect only if the patient is unable to make his/her own decisions.  If you had a car accident and were put on the machines and then you were unlikely to breathe on your own, you could not pull the plug if it meant the fetus would die.  The decisions can be make AFTER the birth/death of the fetus.  As long as you are awake and alert, the decisions are yours (except for crappy laws and interfering family,etc.)  I, personally, have never come across a situation where an advance directive was in conflict with what was needed for the fetus, but I have have been with many couples who needed to make a decision about an abortion based on the health of the mother.  

          "Women are like angels. And when someone breaks our wings, we simply continue to fly... on a broomstick. We're flexible like that." ~ Anonymous

          by CorinaR on Sat May 29, 2010 at 09:22:54 PM PDT

          [ Parent ]

          •  Oh, I see. (0+ / 0-)

            I thought you meant in general, not just in comatose situations.  But even an unconscious pregnant patient could get, say, chemo or an operation to save her life, even if it would result in the death of the fetus, yes?  (Assuming that's what her decision-maker wanted.)

            My comments may not be used for any purpose without explicit permission.

            by cai on Sat May 29, 2010 at 09:26:12 PM PDT

            [ Parent ]

            •  Depends on the state, etc. (1+ / 0-)
              Recommended by:

              Those are very individual cases. Again, if you are awake and alert, that is a different case.  

              "Women are like angels. And when someone breaks our wings, we simply continue to fly... on a broomstick. We're flexible like that." ~ Anonymous

              by CorinaR on Sat May 29, 2010 at 09:30:26 PM PDT

              [ Parent ]

          •  That's why you want a durable power of attorney.. (0+ / 0-)

            "You are not obligated to complete the work, but neither are you free to abandon it." - Rabbi Tarfon

            by samddobermann on Sun May 30, 2010 at 03:31:53 AM PDT

            [ Parent ]

        •  Depends on the state. (0+ / 0-)

          That is definitely not the case in the old NYNEX states.

  •  This needs to be repeated often!! (7+ / 0-)

    It is important both do the paper work and to make everyone understand your wishes.

    I have seen many people try to figure out what the person really wanted, and crisis is not a good time to try to think about that sort of thing.  And, even if you talk, you need to do the paperwork so that things can get done faster and with less red tape.

    Also, don't forget that hospitals and doctors are afraid to get sued, so the loudest person will gnerally be the one making the decisions unless you have done your job of making these decisions.  It is called "the daughter from California" or "the son from Massachusetts" syndrome.  In many cases, the person fartherest away and who has not been active in the patient's life wants to overrule everyone else.  So dothe paper work!  Can't say it enough.

    In addition, from personal experience, it will bring you peace if you are the patient. Several years ago, I was very sick (ICU for 3 weeks, in a coma, intubated, etc.).  After I woke up, I was telling my children tht I had a strange dream while I was out. I dreamt that they were around me talking to the doctors and I was trying to wake up to tell them what I wanted.  I was anxious and struggling to wake up, but then I heard a very decisive voice telling the doctor that I did not want any heroic efforts and that I was to be DNR.  As soon as I heard that, I relaxed and went to sleep.  They told me that they had indeed had the conversation at my bedside and used the words that I remembered and that soon after that I was sleeping, rather than in a coma.  

    Do your paper work and love your family enough to talk about these things -- it is important.

    "Women are like angels. And when someone breaks our wings, we simply continue to fly... on a broomstick. We're flexible like that." ~ Anonymous

    by CorinaR on Sat May 29, 2010 at 08:49:16 PM PDT

    •  Now THAT is a near-death experience (2+ / 0-)
      Recommended by:
      Creosote, cai

      That is a very moving and inspiring near-death experience, and a kind of miracle that I can believe in. Thanks for sharing.

      •  you are most welcome (2+ / 0-)
        Recommended by:
        Creosote, cai

        It is very peaceful to know that my children know my wishes and will honor them.  If dying is similar to what I experienced, its not bad at all.kinda floaty and warm. However, I have not yet finished living here, apparently. LOL

        "Women are like angels. And when someone breaks our wings, we simply continue to fly... on a broomstick. We're flexible like that." ~ Anonymous

        by CorinaR on Sat May 29, 2010 at 09:33:40 PM PDT

        [ Parent ]

  •  Appreciate the info. (3+ / 0-)
    Recommended by:
    Woody, Creosote, Tailfish

    My spouse and I were talking about this last week. I have a living will and a DPOAHC but after reading this I'm going to have a POA done too.

    "The human eye is a wonderful device. With a little effort, it can fail to see even the most glaring injustice." Richard K. Morgan

    by sceptical observer on Sat May 29, 2010 at 08:51:50 PM PDT

  •  IANAL, but... (3+ / 0-)
    Recommended by:
    Creosote, samddobermann, Tailfish

    ... I believe in some places, Durable Power of Attorney for Health Care is called a Health Care Proxy?  I know some states have Health Care Proxies, and it sounds like the same thing.

    IMHO, DPOAHCs/HCPs are more useful and necessary than Living Wills, simply because there's no way to predict every eventuality.  If you have a strong opinion about being kept on life support if comatose and not expected to recover, sure, draw up a Living Will about that.  

    But a lot of medical situations won't be like that, and there's just no way to guess every twist and turn.  Somebody who'd opt for a risky but possibly useful operation one week might make the opposite decision a week later.

    A HCP, OTOH, lets you put the decisions in the hands of someone whose judgment you trust, who can respond to situations as they change.  (Preferably, a someone and a backup someone, if the first is unavailable.)  You can discuss your general preferences with them ahead of time, what chances and quality of life you feel are worth preserving.  Their decisions may be imperfect, but unless you discussed every ailment ever mentioned on House, that could happen with a Living Will, too.

    My comments may not be used for any purpose without explicit permission.

    by cai on Sat May 29, 2010 at 09:07:33 PM PDT

  •  Another benefit of DPOAHCs/HCPs... (1+ / 0-)
    Recommended by:

    it that they create and codify a hierarchy of decision-makers.  People who may feel they're deferring or displaying magnanimity by "letting" someone make the decisions they rightfully should be making can be reminded of the fact that they are not in charge, and do not have the last word... according to the wishes of the patient.

    My comments may not be used for any purpose without explicit permission.

    by cai on Sat May 29, 2010 at 09:15:50 PM PDT

  •  Particular thanks for the link (1+ / 0-)
    Recommended by:

    to information and forms for each state.

    I need to do this, but have no trustworthy family nearby, and wonder how much of a burden having powers of attorney and medical powers of attorney may be on a non-family member.

    Any advice on how, from the hundreds of names in the phone book, one would locate an attorney knowledgeable in elder law? What are the key questions I should ask - and what answers seem to be more reliable?

    Finally, do you have any idea what sort of ballpark fees an attorney may charge to draw up documents of this kind?

    •  Look for the classification "ELDER LAW" (1+ / 0-)
      Recommended by:

      or call your state Bar association.

      Fees are fairly standard for each area.

      I have a dear friend doing mine and have specified he be paid to take any burden off.

      "You are not obligated to complete the work, but neither are you free to abandon it." - Rabbi Tarfon

      by samddobermann on Sun May 30, 2010 at 03:36:03 AM PDT

      [ Parent ]

    •  Most of the advance directives I've seen (0+ / 0-)

      look like they have been self-completed by the person who has now become incapacitated.  In Ohio the forms are set up so that you don't need a lawyer to complete them, and most people do fine in completing them without a lawyer.

      I would download the forms for your state and wait until you have some time with no distractions to read through them.  If you still have questions when you're done, then you can call a lawyer. Your local bar association can give you a referral to either an elder law lawyer, or an estate planning lawyer.

      I think a lawyer shouldn't need to charge more than an hour of time to complete these forms, plus whatever time you use to discuss your questions.  The cost would vary with the lawyer's hourly rate.  Some lawyers will quote you a fixed fee regardless of time used for standard forms like this.

  •  Quick question (1+ / 0-)
    Recommended by:

    What if the individual is a resident of, say, Massachusetts, but is visiting California for an extended period and falls ill in California? Would an advance directive filled out in Massachusetts be of any use if the person given DPOAHC were called to California to make decisions?

    Please visit:

    by Noisy Democrat on Sat May 29, 2010 at 11:18:53 PM PDT

  •  Apparently our local hospital (0+ / 0-)

    Now makes it a practice to ask about an advanced directive with every patient they admit, regardless of the prognosis.

    Fry, don't be a hero! It's not covered by our health plan!

    by elfling on Sun May 30, 2010 at 09:27:05 PM PDT

  •  Caution: Children over 18 need advance directives (0+ / 0-)

    My friend's 18 year old son had cancer, and she and her husband were shocked that without an advance directive or power of attorney they had no say-so in his treatment. He was not incapacitated, so the AD would not have kicked in But they realized too late that they had not discussed any health issues with him and he didn't want to listen to their advice to go to M.D. Anderson in Houston.  He had his first treatments in our mid-sized city---then after not so good results, he agreed to let them make arrangements to go to an internationally acclaimed treatment center.  However, without some type of legal status, parents of legal adults (whether 18 or 21 depending on your state) have no say-so in care.  If, say, the operation went wrong and intervention was needed, you'd rather be safe than sorry.  This advice also applies to children off at college, etc.  Think about it.

  •  Good diary. Thanks. (0+ / 0-)

    Too late to tip/rec - sorry 'bout that. :-)

    It's raining, it's pouring, The BP guys were snoring, Gas bumped their well and it went to hell, And then blew off its mooring...

    by SciMathGuy on Mon May 31, 2010 at 05:34:38 AM PDT

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