Breathe New Life into Old Advance Health Care Directive Forms

Advance Health Care Directives – Statutory Authority (in Maine)

Title 18-A, Article 5 (Protection of Persons Under Disability and Their Property) Part 8: Uniform Health-Care Decisions Act (“Act”), which took effect on October 1, 1995. Section[1] 5-817.

Brief Overview

An Advance Health Care Directive (“AHCD”) is a legal document whereby a person can provide for instructions as to the health care (including end of life decisions) she wants to receive and appoint another person to make health care decisions, effective either immediately or at some future time, such as when she is unable to communicate her wishes. As indicated above, an AHCD can be subdivided into 2 parts: 1) an advance instruction (A.K.A. a Living Will) and 2) a “Power of Attorney for Health Care”, which are distinct legal powers.

Advance Health Care Directives are important because they protect a person’s right and ability to make health care decisions even when they no longer have the capacity to make health care decisions. Advance Health Care Directives also provide others (including family, friends and health care providers) an understanding of what the client wants to happen when they are no longer able (or willing) to make their own health care decisions, which may help family, friends and health care providers by reducing the tension and the emotional stress in making medical decisions for the patient. They can also save time, money and bring families closer during a difficult time by providing a clear and well thought out plan.

Preserving Known Wishes and Reducing Stress

That, at least, is the theory but how effective is the form you use at preserving a patient’s known wishes or reducing stress?

A “Tool Kit for Health Care Advance Planning”, published by the American Bar Association, Commission on Legal Problems of the Elderly available on the web at http://www.abanet.org/aging/toolkit/ contains some practical step by step worksheets that can help an attorney and the attorney’s client (and the client’s agent) come to a better understanding about the client’s health care concerns and desires and may help preserve a client’s known wishes. A customized AHCD might incorporate that tool kit by reference to ensure it is considered at the relevant time.

Similarly, a separate “Statement of Additional Health Care Instructions” to guide an agent might be made available to the client. Recently I have developed such a basic Statement of Additional Health Care Instructions and I will use the remainder of this blog entry to overview that form. First off, my AHCD form makes reference to the Statement of Additional Health Care Instructions and provides the agent with guidance as to where the most updated form might be located. Such instructions are not going to be very helpful if the agent doesn’t know they exist or where to find them – right? My AHCD form does not incorporate the instructions by reference (though it could if contemporaneous completed with the AHCD) as the instructions are intended to change over time – or at least give the client the ability to change the instructions over time. The form is drafted with the execution formalities of an AHCD but states (as does the AHCD itself) that even if it is not executed with the same formalities, it is intended to act as a statement of the individual’s known wishes regarding health care matters.

The Statement of Additional Health Care Instructions I am currently using includes client prompts as to basic information, such as:

Health insurance information,
Current weight and height,
Prescriptions (and over the counter medications) being taken,
Known allergies or allergic reactions to medications,
Recent medical ailments or procedures that the agent should be aware of,
Wishes as to independent living and care,
Wishes as to residential or nursing home placement,
Wishes as use of hospice (or not to use hospice), and
Wishes as to words (topics) of comfort for family to focus on during the dying process

The Statement of Additional Health Care Instructions also includes the following prompts to elicit from the client answers to important questions to guide the agent:

What I enjoy most and what things/activities are important to me in life and which if I could no longer enjoy or do that would make living or struggling to live futile are:
If I was not able to do the activities I enjoy, these are the medical treatments that might be too much:
My biggest fears about getting sick, dying or medical care are:
Beliefs that guide me when I make (or should guide my agent(s) when he or she makes) medical decisions are:
Other wishes I want my agent or family to understand

Patient’s Rights and Effect of an AHCD on Right to Make Decisions

The execution of an AHCD does not prevent a person from making their own health care decisions while they have capacity. Furthermore, when a person needs medical care, they have certain rights, including the right to refuse care. An AHCD does not take away that right. Nevertheless, the execution of an AHCD or recorded answers on a form such as the Tool Kit for Health Care Advance Planning or in a Statement of Additional Health Care Instructions, may be the last opportunity for a client to make their wishes, beyond whether health care providers should take heroic measures or not take heroic measures, known. After the patient loses the ability to communicate, agents, health care providers and family may be, like the patient, in the dark. To me, that is not an acceptable place to position a client to be in. Of course, the client has to want to participate in completing the Tool Kit for Health Care Advance Planning or a Statement of Additional Health Care Instructions. That is a choice – but it is only a choice so long as it is presented as a choice or option available to the client. Many clients may not want to participate – or may delay completing such a form. These may be difficult questions for clients to face, for sure, but who are we trying to kid? Life is playing hardball and there are no take backs, redo’s or rehearsals for the end. Someone (perhaps the attorney) needs to give the client the option to take their planning one step further.

Thanks for reading.

Smilie Rogers, Esq.

[1] Unless otherwise indicated, all Section references are to the Maine Probate Code, Title 18-A.