Making Sense of Living Wills and Other Advance Directives Jack Schwartz Assistant Attorney General April 2008

2 Whats the Issue? ~ 1.5 million hospital and nursing home deaths annually > 30,000 in Maryland Most after a chronic illness Most after a decision about medical interventions

3 Risk of Future Incapacity Whos to decide if I cant? Whats to be done?

4 Common Approach: Silence + Assumptions Ill just leave it to my family to decide Theyll know what to do

5 Ill Just Leave it to my Family to Decide Law sets priority among surrogates 1. Guardian of the person (by court) 2. Spouse As of July 1: also domestic partner 3. Adult children 4. Parents 5. Adult siblings 6. Other relatives or friends

6 Theyll Know What to Do Will they? Deciding in the dark is hard Risk of disagreement Surrogates of equal rank have equal authority Added burden, legacy of bitterness

7 Case Study: A Patient Without Capacity – Mr. Green 82 year-old widower, 3 children Former smoker, has advanced lung disease Also has worsening Alzheimers disease, cant make own health care decisions Bed-bound, lives in nursing home 3 recent breathing crises 911 call, hospitalized, on then off ventilator

8 Prognosis Probable recurrent crises, back and forth to hospital Certified in end-stage condition Nursing home wants to know Hospital transfer when it happens again? Or, no transfer, no attempts at CPR?

9 Family Disagreement Elder daughter: Dad was a fighter, do everything to keep him alive. Son and younger daughter: Dad wouldnt have wanted this, and hes suffering. Its time to stop. What would Mr. Green want done? Who would Mr. Green want to decide? Mr. Green has no advance directive

10 On Not Being Mr. Green: Talk + Advance Directives Dont wait until too late Talk with family about preferences Document decisions in a legally valid way

11 Types of Advance Directives Deciding who decides: naming health care agent(s) AKA durable medical power of attorney Not financial power of attorney Deciding whats to be done: living will Covers life-sustaining, maybe other, treatments

12 Health Care Agents Selection, scope of authority up to individual Agent to decide based on Wishes of the patient, unless unknown or unclear Then, patients best interest

13 Living Will Follows If … then … model If I lose capacity and Im in [specified conditions], Then no CPR, ventilator, feeding tube, etc. Or: aggressive interventions requested Decision to forgo carried out if two physicians certify: Terminal condition End-stage condition Persistent vegetative state

14 Terminal Condition Incurable No recovery even with life-sustaining treatment Death imminent Whens imminent? Up to doctors

15 End-Stage Condition Progressive Irreversible No effective treatment for underlying condition Advanced to the point of complete physical dependency Death not necessarily imminent Primarily advanced dementia, maybe other diseases

16 Persistent Vegetative State No evidence of awareness Only reflex activity, conditioned response Wait medically appropriate period of time for diagnosis

17 Maryland Formalities Two witnesses Notary not required Statutory form optional -- other forms okay Out-of-state advance directives valid Maryland directive elsewhere? Probably; depends on other states law

18 Changing or Revoking an Advance Directive Presumed valid, no expiration New one on same topic revokes old Only patient may change/revoke Family cannot Review it now and then Agents still available? Contact information current? Care preferences the same?

19 Some Pitfalls Advance directive done secretly What? Im his health care agent? I know thats what it says, but she didnt understand. Using ambiguous language No heroic measures. Picking agent + living will: Must agent follow living will?

20 Making It Work in the Real World Copies to family/friends, doctor and hospital Wallet card or electronic registry Want comfort measures in case 911 is called? Special order form (EMS/DNR Order) needed from doctor

21 More Information: Attorney Generals Office Forms: call Forms and other information via the Internet: Then click on Advance Directives/Living Wills Much other material on Maryland law and policy Then click on Health Policy