Making Sense of Living Wills and Other Advance Directives Jack Schwartz Assistant Attorney General January 29, 2008

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

3 Approaches Silence + assumptions Ill just leave it to my family to decide Theyll know what to do Talk but no documents Talk + advance directives

4 Ill Just Leave it to my Family to Decide Law sets priority among surrogates 1. guardian of the person (by court) 2. spouse 3. adult children 4. parents 5. adult siblings 6. other relatives or friends

5 Risks of Leaving Decision to Family Deciding in the dark is hard Risk of disagreement Surrogates of equal rank have equal authority Added burden, legacy of bitterness

6 Mr. Green 82 year-old widower, 3 children Former smoker, had end-stage lung disease Also had worsening Alzheimers disease, cant make own health care decisions Lived in nursing home 3 recent breathing crises 911 call, hospitalized, on then off ventilator

7 Mr. Greens Prognosis Probable recurrent crises, back and forth to hospital Death likely within several months Six? Four? Two? Uncertain Nursing home wanted to know Hospital transfer when it happens again? Or, no transfer, no attempts at CPR?

8 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?

9 Talk by Itself Good, but is it enough? Memories can fade Document as reminder Document can reassure doctors

10 Best: 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 Ask your agent to read Proxy Handbook

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 Doing Both: Effect of Instructions on Agent Living will usually controls Why? Clear evidence of what patient would want done Do you really want to bind your agent? Living will can be made non-binding guidance

18 Maryland Formalities Two witnesses Notary not required Statutory form optional -- other forms okay Out-of-state advance directives valid here Maryland directive elsewhere? Depends on that states law

19 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?

20 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. Are you sure about a treatment decision? Mexican proverb: The appearance of the bull changes, once you enter the ring.

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

22 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