Many articles on wills and powers of attorney address the financial side of estate planning. This article examines planning ahead for medical decisions when a person is unable to give directions on healthcare.
Traditionally, there have been two basic kinds of healthcare documents. First was a document naming a trusted person to direct your healthcare if you are unable to do so yourself, a sort of medical power of attorney. Second is a document indicating the types of medical treatment a person would or would not like to receive in certain situations; this document has often been known as a “living will.” In Virginia, these two documents are combined into a single form called an Advance Medical Directive, or AMD.
Typically, upon admission to a hospital, a patient is presented with an Advance Medical Directive form. Patients who are conscious and competent may express consent themselves and may likewise express their refusal to give consent. This decision is not possible for comatose or incapacitated patients. In the absence of an AMD, if a patient is determined incapable of making an informed decision, the State has selected a decision-making hierarchy, beginning with a legally appointed guardian (which is rare), followed by a spouse, an adult child, a parent, an adult brother or sister, and other relatives in descending order of blood relationship. If none of these are present, the healthcare provider may consult with a person who has exhibited special care and concern for the patient and is familiar with the patient’s religious beliefs and basic values and any preferences previously expressed. Just as a will avoids having one’s estate distributed by the legislature, a directive may mean that the patient has made end-of-life decisions and has decided who will make other medical decisions if the patient is unable to do so. We are all familiar with the heartbreaking stories of the collapse of families in the face of these momentous considerations. The AMD avoids these concerns.
In the living will portion of the AMD, a person expresses wishes regarding life-sustaining or other medical treatment in specified circumstances. Designed to be used at the time the individual is incapable of stating a preference, the AMD generally instructs family and doctors not to prolong life artificially. Not only does such a statement keep this decision away from other persons, it also relieves them of the often wrenching decision as to whether or not a loved one should continue to live in a persistent vegetative state.
This declaration should not be taken lightly and merely completed as another form to fill out. Religious, ethical and personal viewpoints may affect the nature and extent of a person’s wishes in this matter. For example, the Virginia statute identifies procedures as artificially prolonging the dying process to include artificial respiration, cardiopulmonary resuscitation, and artificially administered nutrition and hydration. At one time, there was some doubt as to whether food and water were included in the definition of life-prolonging procedures. Different persons may have different wishes in this regard and careful consideration should be given to these instructions. The AMD does not mean that measures to alleviate pain and provide comfort care are withdrawn, but only more heroic efforts to artificially postpone death.
Aside from embodying a patient’s right to refuse life-sustaining medical treatment, the AMD also acts as a healthcare power of attorney, addressing medical decisions the patient cannot make because of incapacity. The range of persons who may be appointed is not limited—the patient may authorize a spouse, child or friend to be an agent or proxy to make decisions on their behalf. The document can also specifically tell the agent what kinds of care the patient does and does not want. In any event, it is always a good idea to have a lengthy and detailed discussion with the appointed person as to ministrations to be permitted or avoided.
Although a lawyer is not necessary, it is prudent to have a lawyer review your AMD. There are forms online at the Virginia Department of Health website, but they may not include recent changes in the law (e.g., the new concept of a “capacity reviewer,” meaning a professional to assess whether a person is capable of making an informed decision).
Finally, Virginia has launched a new statewide Advance Health Care Directive Registry. Virginia is unique among states that offer this kind of service, since there is no cost to residents or Registry users. The Registry allows Virginia residents to store important documents regarding healthcare so that medical providers, emergency responders, family members and anyone else they grant access will honor their wishes. It protects each person’s legal rights and ensures that medical wishes are honored if the person becomes incapacitated and unable to manage her own care. Registering relieves one’s family of the responsibility for making healthcare decisions and makes a person’s wishes known to healthcare providers. Registration is available by a visit to the Advance Health Care Directive Registry website.
Ted Troland is an attorney with Glenn Feldmann Darby & Goodlatte – visit www.gfdg.com to learn more.