Advance Directives
Overview
Health Care Proxies and Durable Powers of Attorney
Patient Self-Determination Act
A written advance directive allows a patient's previously expressed wishes and values to guide treatment choices at a time when he/she cannot participate in the decision-making process. Depending on applicable state law, an advance directive may take the form of:
A living will or medical directive, in which the individual specifies therapies that he/she would or would not accept as treatment for specific medial conditions.
A Health Care Proxy or Durable Power of Attorney for Health Care, in which the individual designates a surrogate decision maker in the event that he/she is unable to make decisions.
A combination of both, in which the individual makes specific choices regarding therapy as well as designates a surrogate decision maker.
Among the possible kinds of advance directives, living wills have received the greatest attention. In many states, enactment of living will statutes has been a direct response to popular pressure, but notwithstanding the intensity of this debate, the statutes usually contain provisions that are sufficiently restrictive to greatly reduce their usefulness. For example, the statutes
typically limit living wills to the withdrawal of "life-sustaining treatment" from individuals who are "terminally ill." Situations in which the patient is in a coma and may live for months or years without ever regaining consciousness so long as treatment is provided, are effectively removed from consideration by the law. Likewise, progressive debilitating illnesses such as Alzheimer's disease would be excluded.
often contain restrictions on when or how living wills may be executed, such as only by individuals who have been diagnosed as terminally ill and then only after a waiting period of 14 days. Many patients in such a condition are unable to maintain decision-making capacity for another two weeks. And even without the required waiting period, these provisions effectively exclude anyone who suffers a stroke or accident that leaves him/her without decision-making capacity.
may authorize the withdrawal of life-sustaining treatment, but cannot provide a basis for affirmative acts such as the humane administration of morphine to a terminally ill cancer patient in great pain, when the injection will shorten or end life. State legislatures, like courts, have great difficulty confronting and explicitly endorsing the deliberate hastening of death, and they are justifiably fearful of potential abuse.
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Health Care Proxies and Durable Powers of Attorney
The ongoing debate in many states over the language of living will statutes is often superfluous. Any adult with a friend or relative whom he/she is confident will act in his/her best interests can simply appoint that person to act for him/her in the event of incapacitation. Such legal instruments - called health care proxies or durable powers of attorney for health care - avoid many of the difficulties present with living wills, and they are recognized in the majority of states. However, they are not without ambiguities.
First, the maker of a power of attorney cannot grant his/her agent more authority than has the maker. To the extent the competent patient's right to resist medical treatment is in doubt, the same doubts will apply to the agent as well. Indeed, the doubts may be greater if state law does not explicitly authorize use of powers of attorney for medical decision making. In such cases, health care professionals may refuse to accept the agent's authority to make decisions with which they disagree, despite the broad language usually contained in statues authorizing the use of durable powers.
Second, there is some feeling that the relative informality with which powers of attorney can be executed casts doubt upon the appropriateness of their use in exceptionally important (i.e., "life or death") decisions. For the reason - and also in response to the impassioned public discussion of cases such a Karen Quinlan (in New Jersey) and Nancy Cruzan (in Missouri) - many state legislatures are reviewing the laws authorizing durable powers with medical applications in mind. In Massachusetts, for example, the health care proxy laws says that any person aged 18 or older can designate a "health care agent" to make decisions about treatment in the event the attending physician decides the patient is unable to make decisions for himself or herself.
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Patient Self-Determination Act
Current federal law explicitly recognizes the right of the various states, through their legislatures and courts, to establish within their jurisdictions the requirements for withdrawal of treatment and appointment of surrogate decision makers for health care. The Patient Self-Determination Act (PSDA) of 1991 holds that all hospitals, skilled nursing facilities, home health agencies, and hospice programs receiving Medicare or Medicaid funding must provide written information to all adult care recipients regarding the state's laws on advanced directives. Such information must include:
A statement of the individual's right under state law (whether statutory or as recognized by the courts of the state) to make decisions concerning his/her medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives.
A statement of the written policies of the health care institution regarding the implementation of the individual's rights under state law.
In addition, as a further requirement of participation in Medicare and Medicaid programs, the health care provider must agree to:
Document in the medical record of each patient whether or not the individual has executed an advance directive.
Not condition the provision of care or otherwise discriminate against a patient based on whether or not he/she has executed an advance directive.
Ensure the institution's compliance with the requirements of state law, whether statutory or as recognized by the courts of the state, regarding advance directives.
Provide, individually or with others, education for the staff and the community on issues concerning advance directives.