Chapter 6 Advance Directives

Wills, Trusts, and Estates Administration, 3e Herskowitz 2 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Learning Objectives  Understand what Advance Directives Are  Understand the Need and Purpose of a Living Will  Understand the Key Components of a Living Will  Understand what a Do Not Resuscitate Order is and How it Takes Effect  Understand the Role and Authority of Health Care Surrogates and Proxies  Understand How a Durable Powers of Attorney Operate  Understand Anatomical Gifts and How they are Made  Understand what POLST and Death with Dignity laws are

Wills, Trusts, and Estates Administration, 3e Herskowitz 3 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Critical Cases In The History Of The Right To Die  Karen Ann Quinlan (1976)  NJ Supreme Court held that privacy rights included the right to be removed from life prolonging machine  Nancy Cruzan (1990)  US Supreme Court ruled against Nancy’s parents  NJ trial court, in a new case, ordered Nancy’s feeding tubes removed  Terry Schiavo (2005)  her husband, as guardian, sought to have her feeding tube removed, over the urgent opposition of her parents  after fractious legal and political battles, her feeding tube was removed 15 years after her coma

Wills, Trusts, and Estates Administration, 3e Herskowitz 4 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Advance Directives  What are They?  witnessed written documents or oral stipulations concerning a person’s future health care decisions  Key Advance Directives  Living Wills  health care proxies and surrogates  durable powers of attorney  do not resuscitate orders (DNRO)  anatomical gifts  POLST

Wills, Trusts, and Estates Administration, 3e Herskowitz 5 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Living Wills  Declarations directing the refusal or continuation of medical treatment during terminal conditions  “Life-prolonging procedures” don’t include those solely to provide comfort or alleviate pain  “Terminal condition” is one characterized by absence of voluntary action or cognitive behavior – no reasonable probability of recovery

Wills, Trusts, and Estates Administration, 3e Herskowitz 6 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Common Requirements For A Living Will  Personal Data of the Declarant  Statement of willful and voluntary desire to not prolong life  Declaration on Life-Prolonging Procedures or their Refusal, and their Triggering Conditions  Statement of Nullity if Declarant is Pregnant During Triggering Conditions  Hold Harmless Statement  Necessary Signatures  Notary Public’s Acknowledgment

Wills, Trusts, and Estates Administration, 3e Herskowitz 7 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Do Not Resuscitate Order  Advance Directive Executed by a Terminally Ill Patient  Must be Executed Strictly According to the Law of the Declarant’s Jurisdiction  Declares the Patient doesn’t want Resuscitation for Cardiac Arrest or Respiratory Failure  DNROs Must be Printed on a State Agency- Created Form

Wills, Trusts, and Estates Administration, 3e Herskowitz 8 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Health Care Surrogates And Proxies  One appointed by the declarant to make health care decisions if declarant is unable to do so  The surrogate should not be one with a conflict of interest  This appointment must be in writing and witnessed by at least two witnesses  Some of the surrogate’s powers include:  reviewing medical records  giving consent for medical procedures  applying for Medicare/Medicaid benefits  Not all decisions can be made by the surrogate/proxy:  abortion  sterility procedure  shock therapy

Wills, Trusts, and Estates Administration, 3e Herskowitz 9 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Durable Power Of Attorney  Unlike a traditional power of attorney, the durable power of attorney survives or begins during the principal’s incapacity  The principal must be competent when executing the durable power of attorney  The attorney in fact, or agent, is the person the principal appoints in the durable power of attorney

Wills, Trusts, and Estates Administration, 3e Herskowitz 10 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Anatomical Gifts  What Are They?  Donating all or part of one’s body at death for transplants  Why Do It?  As of June 2009, 102,042 people were waiting for transplants. One-quarter of those will die because an organ will not be available.  At least eight people die each day for lack of a donor.  Confusions The Paralegal Can Resolve For The Client  There is no fee to donate  Donation will not delay funeral arrangements  How Old Must A Donor Be?  At least 18

Wills, Trusts, and Estates Administration, 3e Herskowitz 11 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. How May One Become A Donor?  By Will  not a good idea  By Donor Card  much better idea  can be stated on one’s driver’s license  By The Decisions Of Others  decision made for the decedent by one with authority  parents/guardians can do so for minors  surviving spouses can also

Wills, Trusts, and Estates Administration, 3e Herskowitz 12 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. POLST  POLST means “Physicians Orders for Life- Sustaining Treatment”  Purpose:  facilitate the development, implementation and evaluation of POLST Paradigm Programs in the U.S.  educate the public and health care professionals regarding the POLST Paradigm  support, perform, and fund research related to end- of-life care  improve the quality of end-of-life care

Wills, Trusts, and Estates Administration, 3e Herskowitz 13 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Death with Dignity Laws  Allows the terminally-ill to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose.  Patients determine the timing of their own deaths  Obtain assistance from a physician to implement the decision  A good idea?

Wills, Trusts, and Estates Administration, 3e Herskowitz 14 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. What Can A Paralegal Do In The Advance Directives Area?  Discuss the advantages with clients and answer their questions…without giving legal advice  Research the applicable law on correctly executing advance directives  Contact the key parties or family members needed to effectuate the client’s wishes  Draft the advance directives  Witness their execution