When a tragedy strikes or there is illness and we don’t have our affairs in order, most of us will regret not having taken care of things ahead of time. The truth of the matter is that most people procrastinate when it comes to getting legal planning documents in place – it is a statistical fact. Why do we do this? Well, there are many reasons, but one is that a lot of us just aren’t sure what we even need. This is true about our financial affairs, but also just as true about health care decisions and end-of-life care planning.
There are a lot of different terms out there when it comes to health care documents: living will, health care power of attorney, advance health care directive, DNR (Do-Not-Resuscitate order), and POLST (Physician Orders for Life-Sustaining Treatment). It’s no wonder many people are confused! Below I explain the major differences – and why it is so important to ensure you have the right documents in place along the way depending on the circumstances. I am available to answer any questions you may have about them.
A living will outlines your wishes for end-of-life medical care. It can include, in as much detail as you wish, what medical treatments you would or would not like to have in specific situations. For example, you can document whether you want to be given food and hydration to be kept comfortable, or whether you want to be kept alive by artificial means. A living will helps take the stress of making those decisions off family members, guides decision-making in the hospital, and helps to keep peace in families during times that can be difficult and emotional.
A living will is not a binding medical order. It may require some interpretation. Input from your family and your appointed health care agent will be important. This is a very different document than a last will and testament that disposes of your assets and property upon your death.
A health care power of attorney is another legal document that appoints someone to legally make health care decisions for you when you are unable. It is a durable power of attorney and remains in effect while you are unable to make health care decisions for yourself. Unlike a living will, which only covers end-of-life decisions, a power of attorney for health care decisions allows your agent to act at any time that you cannot make your own health care decisions.
In California, your living will and health care power of attorney are generally combined into one document called an Advance Health Care Directive. These come in many forms: a form directly out of the California Probate Code (often called the “statutory form”); the California Medical Association Advance Health Care Directive Kit; the “Five Wishes” form; an attorney-drafted form; and others. It is best to discuss your Advance Health Care Directive with your estate planning attorney to determine what form best suits your circumstances. Everyone over the age of 18 should have an Advance Health Care Directive. Tragedies and illnesses can occur in all phases of life.
Do not resuscitate orders (DNRs) are binding medical orders. This order has a narrow and specific application to cardiopulmonary resuscitation (CPR). To be binding, a physician must sign it. It directs health care providers and emergency medical personnel not to perform CPR, if you stop breathing or your heart stops beating. While your living will may express a preference regarding CPR, it is not the same thing as a medical DNR order. A DNR order is specifically for a person who has gone into cardiac arrest – it does not affect any other medical help or medical intervention (e.g., pain medicine, intubation, medical measures or treatments, or hydration and nutrition).
Physician orders for life-sustaining treatment forms (POLST forms) are medical orders designed for a seriously ill or frail patient who may not survive a year. This is not a form that your attorney drafts – it is completed at the doctor’s office. A physician, physician assistant, or nurse practitioner must sign it to be legally binding. The official form varies from state-to-state. In California, it is generally printed on bright pink paper for easy recognition (though not a legal requirement) and kept in your medical records. A POLST form is meant to work together with your Advance Health Care Directive when you reach a time in life when you want to better ensure that your end-of-life decisions are easily followed and enforced – they are medical orders.
While your wishes in a living will may be appropriately documented, that does not guarantee the instructions will be carried out as you stated. The frightening truth is that mistakes about your end-of-life instructions can be made while you are at your most vulnerable. Dr. Monica Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama has said that misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common.” Click here to read more about this in the Kaiser Health News article in which Williams-Murphy is cited.
According to this article, the underlying problem is that some medical personnel may have little training in understanding and interpreting advance health care directives, DNRs, and POLST forms. Couple that with communication breakdowns in high-stress environments like a hospital emergency room where life and death decisions are often made within minutes, and you have scenarios that can lead to disastrous consequences. In some instances, mix-ups in end-of-life document interpretation have seen doctors resuscitate patients that do not wish to be. In other cases, medical personnel may not revive a patient when there is the instruction to do so resulting in their death. Still other cases of “near misses” occur where problems were identified and corrected before there was a chance to cause permanent harm.
There are some frightening worst-case scenarios, yet you are still better off with legal health care decision and end-of-life documents than without them. It is imperative to understand the differences between them and at what point in your life you may change your choices based on your age or overall health. It is also important to ensure you put them in place while you have the legal capacity to understand and sign them.
To comprehend all of the options available it’s important to meet with trusted counsel for document preparation and to review your documented decisions often as you age. In particular, have discussions with your physician and your appointed health care agent about your wishes and reiterate your expectations. These discussions bring about an understanding of your choices before you may have an unforeseen adverse health event, and better equips your advocates if you are unable to speak for yourself.