Quimbee logo
DMCA.com Protection Status

Advance Care Planning

4.7 out of 5 Excellent(65 reviews)
RM
Presenter(s)
Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49
Play video

Advance Care Planning

Attorneys can play a vital role in discussing advance care planning options with their clients prior to, during, and even after initial estate planning conversations. The Patient Self Determination Act and state laws govern the utilization of advance directives, the primary set of documents that explain a client’s advance care wishes. Advance directives typically consist of a living will or health care directive, which determines what types life-sustaining treatments the client may elect to receive, and a durable power of attorney for healthcare that affords them the ability to select a healthcare agent to make decisions should they lack decision-making capacity. This course will provide examples of a conservative approach to advance care planning using the state of Ohio as an example and contrast with the state of Washington’s approach in allowing natural death planning per its Natural Death Act.

Presenters

Renee Mallett
Healthcare Attorney

Transcript

Renee Mallett: Hello, and thank you for being here today. My name is Renee Mallet, a healthcare attorney. Prior to law school I was actually a practicing nurse in the emergency department and intensive care units. Today I will be able to share my experience as a nurse, and also as a practicing attorney as to why the advanced care documents are important. If you have not completed your advanced care planning documents, now would be a good time for you to hear this course. In completing your own advanced care planning documents, you will learn what a living will is, what a durable power of attorney for healthcare is, how to make the proper organ tissue and eye donation, and what a do-not-resuscitate order is. This conference will be able to provide you the confidence in providing advanced care planning legal services to any client that would come in for estate planning or general legal questions.

   Thank you for participating today and understanding the importance of why now more than ever after this pandemic for us to make sure we have our advanced care documents as we never know when an accident or serious illness or injury would impact our lives and our family members. Welcome to advanced care planning, assisting your clients in preparing for the future. This presentation includes a number of resources, including today's slides with speaker notes and resources. The COVID-19 pandemic illustrated how precious life can be. Many Americans were unprepared in knowing what their loved ones end-of-life wishes and preferences were. Without the preferences written or expressed, physicians in the healthcare team provided life saving and sustaining care to all patients that entered the health system.

   Per a U.S. study conducted by The Conversation Project, 92% of Americans expressed it is vital to discuss their end-of-life care wishes. However, only 32% had such discussions. Over half of Americans verbalized they would be alleviated to express their end-of-life care wishes. This course will aid you in preparing your clients and their family peace of mind by declaring what their end-of-life care wishes and preferences would be. Moreover, you can further assist your clients in storing these end-of-life care documents with your client's primary care physician, and especially physicians such as a cardiologist, oncologist or a pulmonologist, and the hospital where they would likely present for care in treatment.

   To make this course interactive, let's start with Gene and Mark, your new clients that just called your law firm inquiring about estate planning. After discussing their financial and estate plans such as wills and trust, you introduce their end-of-life advanced care planning needs. Gene is 48, whom she is married to Mark, who is 58, and they live in the State of Ohio. Mark has two sons from a previous marriage, Sean and Steve, 30 and 28-years-old, while Gene has a son from a prior marriage. His name is Samir and he is 20. Gene and Mark will be seeking your counsel of their advanced care planning documents. You will be walking Gene and Mark through the various advanced care planning forms. Living will, durable power attorney for healthcare and having a discussion with their end-of-life care preferences may be, and also organ, eye and tissue donation. You will further define and describe what a do-not-resuscitate order is.

   What exactly is advanced care planning? Advanced care planning is a proactive voluntary method of discussion about the type of care an individual would prefer to have should they become very ill and unable to make their healthcare decisions. These conversations are held in advance and capture the individual's preference as to what type of medical care and treatment they would like at the end of their life.

   Next you provide Gene and Mark the enclosed conversation starter guide that has been developed by The Conversation Project and schedule their next appointment in two weeks. This will allow Gene and Mark to have those conversations and express their desires at the end-of-life. And additional resources developed by the Center for Practical Bioethics is Caring Conversations, making your healthcare wishes known. Caring Conversations also has a workbook for young adults. After you counsel Gene and Mark you might want to offer this to their young adult sons who are 20, 28 and 30, for them to start thinking about their end-of-life care plans, should an accident or sudden injury occur.

   This will all make sense once we discuss the Nancy Cruzan case as to why it is important for your client to have their end-of-life care wishes documented. Nancy Beth Cruzan was a 25-year-old when she was involved in a single car accident in 1983. This accident left her in a permanent comatosed and vegetative state. Although Nancy could breathe on her own, she needed a gastrostomy tube in which she received internal nutrition and water. Nancy was unaware of her surroundings and could not talk. She suffered severe quadriplegia with irreversible contracted extremities in which her arms and legs contracted up, therefore she was no longer able to walk or eat or do any activities independently.

   She was in this state for over eight years prior to her passing at age 33. Before her injury Nancy was described as a vivacious, active, outgoing, independent person. Nancy also made several declarations to her family that she would not want to continue her present existence without hope as it is. Nancy had witnessed her grandmother's declined health and remarked it was better for her grandma not to be brought back and forth by medical care.

   All the above statements were verbal, as this was done prior to the advances care planning documents such as advanced directives were legalized in all 50 states. Hence, now we're going to discuss why it's important to have those written declarations at the end-of-life. So further on, let's talk about Nancy's situation. Because Nancy was not married her parents were her legal guardians. Her parents requested discontinuation of the ental therapy and removal of her feeding tube so that Nancy may die naturally. Absent a court order hospital administration declined the wishes of Nancy's parents.

   Nancy's parents initiated a civil suit for the discontinuation of her feeding tube. The trial court concluded that Nancy Cruzan would not wish to continue with nutrition and hydration. The court concluded there is a fundamental natural right to refuse or direct the withholding or withdrawal of artificial death prolonging procedures when the person has no more cognitive brain function and there is no hope of further recovery. The court also concluded that no state interest outweighed her right to liberty and that denial of her wish constituted unequal protection of the law.

   However, by a four to three decision, the Missouri Supreme Court reversed the trial court's decision stating the court had erroneously declared the law. The Missouri Supreme Court concluded that the feeding tube was not heroically invasive, nor painfully invasive or oppressively burdensome. The court ruled that no individual may refuse treatment for another individual, absent an adequate living will, or the clear and convincing evidence absent here.

   Nancy's parents pressed on and the U.S. Supreme Court elected to take its first right to die case. The U.S. Supreme Court noted that an individual's right to refuse treatment is logically corollary of the common law of consent. The court further wrote it may be inferred from previous rulings that a competent individual has a constitutionally protected liberty interest in refusing treatment. Appellants argue the right also applies to an incapacitated individual in which the decision to remove life-sustaining treatment could be determined by a surrogate.

   However, the court had to determine if this right carried over to an incapacitated individual, in which the decision to remove life-sustaining treatment could be made by a surrogate. The U.S. Supreme Court affirmed the Missouri Supreme Court's holding that the burden of clear and convincing evidence had not been satisfied.

   Next we would be talking about the Patient Self-Determination Act of 1990. As a direct result of the Nancy Cruzan case Congress passed in 1990 the Patient Self-Determination Act that took effect on December 1st 1991. The vision for this pivotal piece of legislation is to promote mindfulness and conversations of healthcare issues and preparation of the end-of-life care of healthcare decisions. Thus, the Patient Self-Determination Act promotes all adults to make choices and decisions in advance about the type and level of medical care they want to receive or decline.

   Further an individual can designate another adult such as a family member or a friend to advocate their wishes, should they become unable to make future healthcare decisions due to the advancement of their illness or mental capacity. More importantly, the Patient Self-determination Act obligates all hospitals' long-term care facilities such as nursing homes, home health agencies, and hospice receiving Medicare and Medicaid reimbursement to proactively ask all adult patients if they have their advanced care directives, which are defined as the living well and durable power attorney for healthcare.

   Further, these healthcare entities must provide educational materials about the patient's rights per their state laws on advanced care directives. Thus, the Patient Self-Determination Act endorse the common law right of self-determination as assured by the Fourteenth Amendment of the constitution.

   So advanced directives as defined by the Patient Self-Determination Act are the appointment of an agent or a surrogate to make healthcare decisions on behalf of such an individual and the provisions of written instructions concerning the individual's healthcare, including instructions for organ donation. Advanced directives are fluid living documents, and that your clients Gene and Mark can adjust as their situation changes because of new information or change in their health.

   Your client can change their healthcare surrogates and their durable power of attorney for healthcare or treatment modalities in their living will, and even revoke their living will. Ohio is a conservative pro-life state, while we know Washington and Seattle promote natural death. We will delve into these states' advanced care planning documents.

   So let's look at Ohio. There are two advanced direct that one is the durable power of attorney for healthcare, and two is the living will. In Washington these two types of advanced directives are called the durable power of attorney for healthcare. And a healthcare directive is considered a living will. In Ohio the Ohio State Bar Association in collaboration with the Ohio State Medical Association, the Ohio Hospice and Palliative Care Organization and the Ohio Hospital Association and the Ohio Osteopathic Association have developed standardized advanced directive forms. You can find these on the Ohio State Bar Association.

   In the State of Washington, the Washington State Medical Association, the Washington State Hospital Association, and the Honoring Choices of Pacific Northwest have developed advanced directive templates. To ensure you have your state's most recent versions, perform an internet search by typing your state, advanced directive laws or forms. The attorney who prepares the advanced care directive documents may want to provide his or her business address and contact numbers on these advanced directives if there are any questions, should the healthcare providers have any questions at the time of these documents.

   So let's further discuss what a living will is. We'll talk about Ohio's living will. In the State of Ohio a living will is a legal instrument that provides a process by which your client known as the declarant may declare his or her healthcare decisions. A competent adult may execute a living will and indicate their wishes with respect to use, continuation, withholding or withdrawal of life-sustaining treatment to include if they would want the withdrawal of food and hydration should the client be in a terminal condition or permanently unconscious state.

   In the State of Ohio a terminal condition means an irreversible, incurable, untreatable condition caused by disease, illness or injury, to which to a reasonable degree of medical certainty, as determined in accordance with a reasonable medical standards by the declarant's attending physician and one other physician who has examined the declarant. Both of the following apply in which there could be no recovery and death is likely to occur within a relatively short period of time if life-sustaining treatment is not administered.

   In the State of Ohio a permanent unconscious state means a state of permanent unconsciousness in a declarant to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the declarant's attending physician and one other physician who has examined the declarant, is characterized by both of the following, irreversible unawareness of one's being and the environment, and total loss of higher brain functioning, resulting in the declarant having no capacity to experience pain or suffering.

   So thus, in the State of Ohio and many other states that have similar provisions in that a living will does not become effective until the declarant's attending physician and one other examining physician has determined that the declarant is either in a terminal condition or a permanently unconscious state, and is unable to make informed decisions concerning the declarant's medical treatment.

   Further, Ohio law and other state laws specify comfort care may never be withheld or withdrawn. Comfort care means the administration of nutrition, hydration, and any other medical or nursing procedure, treatment, intervention, or other measures that is taken to diminish the pain or comfort of a declarant, but not postpone death.

   In Ohio and many other states a living will can also authorize a do-not-resuscitate order. By electing this option the individual is indicating in advance that cardiopulmonary resuscitation or CPR is not to be performed in the event that individual stops breathing or their heart stops. In Ohio the declarants, I.e. the patients, physician, physician assistant, clinical nurse specialist, or nurse practitioner are permitted to issue a DNR order when the person is declared in either a terminal condition or a permanently unconscious state.

   In Ohio the requirements for a valid living will are that it must be in writing, signed by the declarant, dated, witnessed or notarized. If the living will is witnessed, then there must be two adult witnesses who are not related to the declarant by blood, marriage or adoption, or who are not the declarant's attending physician or any other healthcare providers providing care and treatment to the declarant.

   Further in Ohio, an administrator of any nursing home in which the declarant is receiving care cannot be the witness. The living will may contain a list of persons who are to be notified if life-sustaining treatment is to be withheld or withdrawn. Once the client lacks mental capacity, a living will cannot be executed or an existing one cannot be altered. Hence, you must have the mental capacity to execute a living will. Once you lose that mental capacity you cannot execute your living will.

   Also, per Ohio law, a living supersedes any conflicting informed consents or healthcare power of attorneys, regardless of which was executed first. An attending physician or healthcare facility in which a declarant is receiving care that is not willing to comply with the living will must not prevent or delay the transfer of the declarant to the care of a physician or healthcare facility that is willing to comply with Ohio's living will.

   An important aspect of Ohio's advanced directive laws is that a physician or healthcare facility or other healthcare personnel who act under the direction of an attending physician are provided with immunity from criminal and civil liability, as well as any professional disciplinary actions for complying with a patient's advanced directives.

   Now let's switch over to the State of Washington. Healthcare directives are known as living wills in the State of Washington. A healthcare directive is a directive to withdraw or withhold life-sustaining treatment. The healthcare directive directs your client's healthcare agent and or medical providers on whether to withdraw or withhold life-sustaining treatment if your client were permanently unconscious or not expected to recover. In the State of Washington life-sustaining treatment means a way to sustain, restore, or replace a vital function by different types of machines or devices, including artificial nutrition and hydration.

   For a patient with a permanent unconscious condition or terminal condition, life-sustaining treatment would only prolong the process of dying. Medicines or other treatments that are only used to ease pain are not considered life-sustaining treatment. Washington has a provision for your client to indicate the issues of temporary life-sustaining treatment. Your client can elect a time limit as to how long they would want to be provided with life-sustaining treatment, as sometimes it is difficult to know if there will be a great chance of recovery, or for some reason the patient may be on life-sustaining treatment for an unknown period of time.

   In the State of Washington a terminal condition means a condition caused by an injury or sickness that a physician has judged cannot be cured or changed. The terminal condition would likely cause within a short period of time. Unlike Ohio law, in the State of Washington only one physician must determine the patient is in a terminal condition. A permanent unconscious condition means an incurable and irreversible coma or persistent vegetative state. Here two physicians must have judged that there is little chance of recovery. If your client is pregnant in Washington, your client's healthcare directives will have no force or effect during your client's pregnancy.

   The healthcare directive in Washington can be notarized or signed by two witnesses. The rules for witnesses are as followed. Witnesses must be 18 years of age and competent, must watch your client sign the healthcare directive. Cannot be related to your client by blood or marriage. Would not be entitled to any portion of your client's estate upon your client's death. Cannot be your client's attending physician or an employee of attending physician or healthcare facility where your client is receiving care as a patient. Cannot be any person who has claimed against any portion of your client's estate at the time of signatures of the healthcare directive.

   The State of Washington also provides immunity against a physician, advanced registered nurse or healthcare providers acting under the direction of a physician or an advanced care registered nurse who participates in good faith within the withholding or withdrawal of life-sustaining treatment. Hence they are immune from legal liability, including civil, criminal and professional conduct sanctions. In the State of Washington, the Department of Health actually maintains a healthcare declarations registry in which your client can register their living will and durable power attorney for healthcare.

   Next we're going to talk about a durable power of attorney for healthcare. Let's use Ohio as an example. A competent adult, which is known as the principal, may by executing a durable power of attorney for healthcare authorize another individual to make healthcare decisions for the principal if the principal has lost the capacity to make informed decisions concerning medical treatment. The DPOA does not go into an effect until the principal lacks the capacity to express their medical decision. It is a broader document than the living will, as the healthcare decisions are not limited to decisions in regards to a terminal condition or permanent unconscious state. The attorney-in-fact must act in accordance with the principal's prior express wishes. If the wishes of the principles are unknown, the principal's best interest.

   A valid durable power of attorney for healthcare must be in writing, signed, dated, and either witnessed or notarized. If the durable power of attorney for healthcare is witnessed, then there must be two adult witnesses who are not related to the declarant by blood, marriage or adoption, and who are not attending physician of the declarant or any other employees providing care to the declarant, and also not the administrator of a nursing home in which the declarant has been receiving care.

   In Ohio any competent adult may be designated as the attorney-in-fact in the durable power of attorney for healthcare. Except that attorney-in-fact cannot be the principal's attending physician, administrator of a nursing home where the principal is receiving care or any employee or agent of the attending physician or nursing home, unless the physician, nursing home administrator or employee agent is related to the principal by blood, marriage or adoption.

   In the durable power of attorney for healthcare the principal may provide for alternate attorney-in-fact if the first choice is not readily available or is unwilling or unable to serve or continue to serve. In Gene and Mark's situation, Mark will serve as Gene's healthcare surrogate or attorney-in-fact. And Mark will serve as Gene's healthcare surrogate. Gene has named two alternative agents should Mark be unable to serve as her surrogate. Gene has design designated her son Samir and her twin sister Renee as alternate agents. Mark has designated his sons Sean and Steve. Gene and Mark have made this easy. If your clients that are unsure who to designate, either health surrogate or attorney-in-fact, there are many tools available. The Conversation Project has tools choosing a proxy guide that could be available for your clients.

   Per Ohio law prior informed consent by the principal may not be withdrawn by the attorney-in-fact, unless the principal's condition has changed so that the benefit of the care that was consented to is significantly reduced or the care has turned out to be not significantly effective for the principal. The attorney-in-fact may never withhold or withdraw treatment that is considered comfort care. An attorney-in-fact may not refuse or withdraw informed consent to healthcare for a principal who is pregnant if the refusal or withdrawal would terminate the pregnancy, unless the pregnancy or the healthcare would pose a substantial risk to the life of the principal. Or unless the principal's attending physician and at least one other physician who has examined the principal determined to a reasonable degree of medical certainty and in accordance with reasonable medical standards that the fetus would not be born alive.

   As with the living will in the State of Ohio, a physician healthcare facility and other healthcare personnel who act under the direction of an attending physician are immune from criminal and civil liability, as well as professional disciplinary actions for complying with healthcare, durable power of attorney and living will statutes.

   Moreover, the healthcare durable power of attorney relieves the attorney-in-fact from liability from reasonable choices made in good faith. In Ohio the law provides the procedure by which the principal may revoke their durable power of attorney for healthcare or living will. A durable power of attorney for healthcare and living will may be revoked when the principle communicates an intention to revoke. It is best practice to revoke the documents by destroying the original and all copies. However, any communication of intent to revoke, even verbal, is legally effective. The problem with a verbal revocation is the difficulty improving the intent to revoke, particularly if the principal is incapacitated when the issue arises or if the original document exists, therefore it is best to revoke all documents by destroying them and all copies.

   Let's talk about the State of Washington's example. A durable power of attorney for healthcare is based on chapter 11.125 of the Revised Code of Washington. This legal document affords your client to name their healthcare agent to make healthcare decisions if they're unable to make their own decisions. The healthcare agent should understand the role of a healthcare agent and agree to this role. Further they should communicate and carry out your client's goals, values and wishes to your client's healthcare providers. The healthcare agent may not be under 18 years old, so hence they must be a legal adult. The healthcare agent cannot be your client's physician or physician employees, unless they are your client's spouse, domestic or intimate partner, parent, adult child, or adult sibling. The healthcare agent may not be an owner, administrator or an employee of a healthcare facility or long-term care facility where your client is receiving care or lives, unless they are your client's spouse, domestic intimate partner, parent, adult child, or adult sibling.

   An interesting fact in Washington, the law provides if your client selects their spouse or their common law domestic partner as their healthcare agent, they will stop being named as their healthcare agent if your client files for dissolution, annulment or any legal separation. However, the Honoring Choices Pacific Northwest advanced directive does allow your client to continue as their ex-spouses, their healthcare agent, even after divorce. The Honoring Choices Pacific Northwest advanced directive is to name a healthcare agent. However, your client has the option not to name a healthcare agent. If a healthcare agent is not named, the healthcare professionals will follow chapter 7.70.065 or the revised code to determine who may act in your client's healthcare decision making. We will review a little bit later what Ohio's descending order is along with Washington, if there is not a healthcare agent listed, and who the healthcare team would look to provide a healthcare decision, should your client be unable to provide that healthcare decision.

   So in Washington your client may complete the other sections of the Honoring Choices Pacific Northwest advanced directive. This will be considered their personal value statement, but not an advanced directive. So hence, if they've not assigned a healthcare agent, the durable power of attorney for healthcare converts into a written attestation of your client's personal values, what their end of choice life would be. So their personal value statement is the summary of your client's goals, values and preferences at the end of care. The durable power of attorney healthcare form allows your client to determine and document what matters most to them, what does living will look like to them? What does a good day look like to them? What exactly are their beliefs, preferences, and practices? What medical treatment they would like? Further your clients can document what provides your client's support, comfort and strength during difficult times, when life support should be withheld or discontinued when your client is likely to die or be in a coma.

   The durable power of attorney for healthcare form in the State of Washington guide your clients also to select their code status, whether they want to be a full code, receiving all, CPR. And we'll further discuss what the definition and components are of CPR, or if they'd like to be a no code if your client is hospitalized. So the durable power of attorney for healthcare form, your client can decide their code status should your client be hospitalized. Code status means the type of emergent treatment such as cardio, pulmonary resuscitation or CPR your client would or would not receive in the hospital if their heart stops or they stop breathing. The durable power of attorney for healthcare may be notarized or signed by two witnesses. The witnesses must be at least 18 years of age and competent, cannot be related to your client by blood, marriage or a domestic partner. Further, the witnesses can't be your client's healthcare provider or care provider at the adult family or long-term care facility, or your client's healthcare agent.

   So let's talk about what a do-not-resuscitate order is. Unlike advanced directives, which may be completed by legal counsel, your attorney, a DNR order must be written by a physician and in some states by an advanced care practice nurse or a physician assistant. A DNR order specifies that cardiopulmonary CPR should not be administered to the patient. Your client may not independently sign up for DNR in advance without the involvement of a physician or advanced care practice nurse or physician assistants, depending on what your state law is. Your client could certainly ask your physicians about DNR order and when it would be applicable and in what circumstances.

   Many hospitals and healthcare facilities have literature on the DNR order in their specific states. In Ohio, unlike many other states, the wishes of the patient or your client trump any family opposition to the advanced care planning documents or the DNR order that is consented to by the patient or his or her attorney-in-fact. Legal counsel confronted with this situation should do their best in advocating the client's wishes as evidenced by their advanced care directives and other documented wishes they have done in advance.

   Hospitals and healthcare entities should have policies in place when a DNR patient is undergoing surgery or being provided anesthesia. The patient must be informed that resuscitation and life support are an integral part of anesthesia, therefore it may be difficult to distinguish between natural events and reversible medical interventions of anesthesia.

   The patient should be given the following options with their DNR prior to surgery. Suspend the DNR order, meaning all resuscitative measures will be employed during the operation. Qualify the DNR order, in which the anesthesiologist and surgeon will only respond to all reversible medical conditions as medically appropriate and consistent with medical standards. Honor the DNR order, CPR will not be performed under any circumstances.

   Your client may revoke his or her DNR order at any time by verbal or written request to receive CPR or any components of CPR by revoking his or her living will if there is a provision about when a DNR order takes effect. In Ohio and many states life-sustaining treatment is any medical procedure, treatment, intervention, or other measure that when administered to a patient will serve principally to prolong the process of dying. In practice life-sustaining treatment may mean respiratory support on a ventilator, which is a ventilator is a respiratory or breathing machine. Dialysis treatments, could be renal or hemo, blood. High dose of resuscitative drugs, such as epinephrine or lidocaine. Artificial nutritional treatment, such as a tube surgically inserted in your client's abdomen for long term, or a long-term catheter inserted in a major vein supplying vitamins, minerals, proteins and fats. A heart balloon pump to assist your client's heart in pumping.

   Per the American Heart Association cardiopulmonary resuscitation is an emergency life-sustaining procedure performed when the heart stops. Immediate CPR can double or triple chances of survival after cardiac arrest. Per the Ohio DNR and also there's a definition of American Heart Association, CPR or a component of CPR means the following, with the intent to resuscitate. So the intent to bring back the patient. Administration of chest compressions, insertion of an artificial airway, except when you're providing comfort care to the patient or to clear the patient's airway. So, if you insert the artificial airway with intent to resuscitate. Further components of CPR with the intent to resuscitate also means the administration of resuscitative drugs, defibrillation or cardioversion, provision of any other respiratory assistance, initiation of resuscitative intravenous lines, initiation of cardiac monitoring.

   It is noted a patient may elect to have all components of CPR or limit one component, such as insertion of an artificial airway or intubation that ultimately places the patient on a ventilator. So sometimes a patient might say, "I want to be fully resuscitated, but I do not want to be intubated and placed on life support, placed on the ventilator."

   The physician would write the order in the medical record as a full code, but without intubation or placement on a ventilator. However, if the patient does not want to be resuscitated all the components, they would simply write a DNR order. Here in the State of Ohio it's a little complex, there's one DNR protocol, but there's two triggers in which that DNR protocol will take effect. So just make sure your client talks with their attending care physician about a DNR order. But also keep in mind on the living will, when the patient is deemed in a permanently unconscious state or a vegetative state or in a terminal condition and either if your state makes two physicians confirm those disease processes or those states or one physician, then the DNR order can take effect in those two limiting conditions.

   Let's talk about what is called portable orders for life-sustaining treatment or a POLST form. In the State of Washington for clients with serious health conditions, this is a form in the state of Washington that can represent your client's wishes in emergency medical situations, in which this document is called a portable orders for life-sustaining treatment, POLST form. So we talked earlier in the State of Washington that your client can also initiate if they want a DNR order once they're in the hospital, that is only once they're in the hospital. This POLST forum provides when a client is in a serious health condition, any other medical facility, your client can elect not to receive CPR, so the POLST form would be used.

   What exactly does the POLST form have or what is it? The POLST is a medical order that communicates healthcare decisions to emergency responders and any other medical professionals. Your client may elect to have full treatment, in which their primary goal is to prolong life by all medically effective means. They can select selective treatments in which the goal is to treat the medical conditions while avoiding life-sustaining treatment to include intubation, or they can actually elect what's called comfort-focused treatment. And the goal is to maximize comfort care, relieve pain and suffering. So really it's just to provide comfort care. In providing comfort care the patient be placed on oxygen, may be placed on other medications to relieve pain and suffering. So it's a nice tool in which your client can say, "I want full treatment, selective treatment or comfort-care measures."

   Also, some patients sometimes complete these POLST forms in addition to their advanced care directives in other states. So the POLST form is portable orders for life-sustaining treatment, sometimes the patient or your client, if they have completed this, if they've travel from various states, such as going from Ohio to Florida, Washington to Florida, or just traveling with them, they can carry this POLST form on them. And it gives the healthcare providers, should they experience an end-of-life care situation, whether by accident or they're in serious health conditions, it's a guideline to provide that to the healthcare teams.

   So let's next talk about organ donation. On the living will forms and most advanced directive forms in every state there is a provision for organ donation. Many residents also that have a valid driver's license or a state issued identification card can also elect to be an organ, tissue or eye donor. But back to the advanced care directive, such as the living will or healthcare directive, you can also make your organ donations wishes known, and that's usually eye, tissue and organs. So oftentimes it's asked, "When should I have an advanced directive?" I counsel any adult that's 18 and older should always have an advanced care directive. But specifically if your client does inquire about advanced directives, general guidance should be to establish at any age as these are living fluid documents. I completed mine at age 18 or 21, and I've updated it. I am now 48-years-old, so I've updated it over the years. I always make sure if I know that there's a more recent version of the advanced care directives, I'll go ahead and update my advanced care directives to those recent versions.

   However, keep in mind, if your client has a version that was a couple versions ago, that's okay for them to use that version if it was completed during the time period in which that version was made available. So at any age, anybody can complete advanced directives. And again, your living will is so specific to whenever you're in a permanent unconscious state or in a terminal condition. What's really vital is that durable power of attorney for healthcare. So if I cannot provide healthcare decisions on my own, who do I want to make those healthcare decisions on my behalf? It's very important you select a healthcare agent and have communicated what those wishes are. You can, we'll talk about some resources at the end of this course, a lot of those resources you can complete. And then that way, if the attorney-in-fact has to make those healthcare decisions, they have a full understanding of what your client's wishes would be.

   I further counsel any patient should have these documents done prior to a diagnosis of Alzheimer's or dementia. Because keep in mind, you have to be mentally competent to complete these advanced directives. If you've lost any sort of mental capacity or you're in those disease states such as Alzheimer's or dementia, it's hard to prove that you have the mental capacity and therefore those advanced care directives typically cannot be completed in those disease processes. Definitely advanced care directives should be completed in any early diagnosis of cancer, any history or diagnosis of heart disease, such as chronic heart failure, rather you've had a recent heart attack or you're susceptible. Any respiratory diseases such as chronic obstructive pulmonary diseases, cystic fibrosis. Any other respiratory diseases that are chronic and long term, definitely for renal disease, such as kidney failure, I would definitely have advanced care directives initiated for those clients.

   So let's move on to what if your client doesn't have advanced directives? What would be the hierarchy for somebody providing healthcare decisions should your client be unable to do so? So we'll take the Ohio law per section 2133/08 of the higher revised code. Should your client be unable to make healthcare decisions the hierarchy is, if there's a guardian to your client, your client's spouses, if the client is not married or is divorced or they happen to have any adult children of your client would come into play next, if there is more than one adult child in the state of Ohio, the majority of your client's adult children who are available within a reasonable period of time for a consultation must also help out with that decision, your client's parents. So again, if it's an unmarried individual with no adult children of their own, then it would rest on if their parents were still living.

   Then if that was no longer an option, it would be the adult sibling of the patient or your client. If there's more than one adult sibling, it would be the majority of your client's adult siblings who are available within a reasonable period of time to provide that decision. Should your client not have a spouse, not have a guardian, not have any adult children, not have any living parents, not have any adult siblings, then we would look for the nearest to adult who is related to the patient by blood adoption and who is available within a reasonable period of time for consultation. So you can imagine that's a tedious long process for the healthcare team to try to track all these individuals and to determine who in that hierarchy is available. It's also complex if there's many family dynamics happening, such as half brothers, stepbrothers, et cetera. So it's always just good measure if they're reluctant not to complete the living well, but perhaps you can help them complete the durable power of attorney for healthcare in which they can designate a healthcare agent to make their decisions should they be unable to make those decisions.

   So let's talk about the State of Washington if a healthcare agent is not selected in advance by your client, who then will make those decisions. The healthcare team, if they're looking for somebody to make decisions on behalf of your client because your client does not have the capacity, they'll look for a guardian, either court appointed if applicable. They'll look for any named healthcare agents. They'll look if the client is married, so they'll look to their spouse or their registered domestic partner. They'll look for adult children. They'll look for parents. Then they'll go to adult siblings. They'll go to adult grandchildren who are familiar with the patient. They'll go to adult nieces and nephew who are familiar with the patient. Then they'll look for adult aunts and uncles who are familiar with the patient. They'll look at a close adult friend who meets certain criteria.

   Keep in mind if it's a named healthcare agent or an adult child, adult sibling, an adult grandchild, adult niece or nephew and adult aunts or uncles, usually in this group they will look for one individual. If there's one individual, they'll look for that one individual. However, if that group has more than one individual, then everybody must agree to that care. So you can imagine, imagine if your client doesn't have a durable power of attorney, a healthcare agent named, should they have multiple children, say they have nine adult children, the law provides that everyone in that group must agree to that care. So you can imagine, it might be D call to get all nine adult children to agree. We don't know the relationship they have with your client, and whether they're close to your client, whether they understand what your client's wishes would be. So very, very important to always make sure if you can get your client to complete that durable power of attorney for healthcare. That's vital and that's important.

   So let's focus on what is considered palliative care. The Centers for Medicare & Medicaid, CMS defines palliative care as patient and family-centered care that optimizes quality of life by anticipating, preventing and treating suffering. Palliative care throughout the continuum of the illness involves addressing physical, intellectual, emotional, social and spiritual needs. And to facilitate patient autonomy, access to information. Specifically comfort care may provide treatment that aids in your patient, managing their shortness of breath, helping them to be able to breathe better through the end of their life. Limiting diagnostic invasive tests, such as invasive laboratory tests, invasive radiology tests, or other diagnostic test, providing spiritual and emotional counseling for your patient, giving them medication to ease their pain, anxiety, their nausea, or if they would be constipated at the end of their life. Really comfort care is just really to make them pain free, no suffering, and to make them be able to enjoy the passing of this next chapter.

   Your client can always certainly add to their advanced directives documents that they wish to have palliative care or comfort care. Also, they can add other information. I've seen clients add that they wish to die at home, that they want their pet available to them. That they want flowers on their bedside. That perhaps they want certain music playing. Perhaps they want a fan on them. They wish to have certain individuals come see them such as their family priest or pastor. So keep in mind with those advanced directives, the client can be specific how they choose to exit their life. They usually, the more documented we have the better. It just allows that client to be able to take control when they pass this lifetime.

   So let's talk about what resources are available on the internet that you can provide your clients. So provided are resources for you and your clients. If your client allows to complete workbooks provided by the Five Wishes or the Conversation Projects, they can complete these workbooks and actually store them with their advanced directive forms. This will allow the client's healthcare agent, family members, their physician, healthcare team to really have a great understanding of what their end-of-life care wishes are.

   So the Five Wishes document, it's called conversation starters to have with your family about advanced directive has five points and five wishes. So in order to start this conversation, you can give guidance to your client for them to start having these end-of-life conversations so they can start to talk to their family. So here's just conversation starters. There's been something on my mind and it's a good time for me to bring this up. You matter to me and I care about you. So perhaps it's an adult child that's wanting to make sure their parents have their advanced care wishes so they can breach the topic like this. You can count on me to be there. I want to do the right thing for you when you need them the most. I do not know what your wishes are, so please tell me so I can honor them, whether I agree with them or not.

   So those are conversation starters, but let's go into what exactly are the five wishes. So it's a five wish document that your client can complete. Wish number one is the person I want to make my healthcare decisions for me when I cannot. So they're deciding who can make their healthcare decisions. Who's that attorney-in-fact or that healthcare agent. Wish number two is my wish for the kind of medical treatment I want or more specifically do not want. Wish number three is my wish is for how comfortable I want to be. Wish number four is my wish is for how many people treat me, my wish for how my people treat me. Wish number five is my wish for what I want my loved ones and healthcare team to know, what is vital for them to know at the passing of my lifetime.

   Other resources available for you at the Conversation Project is a workbook called What Matters to Me Workbook. So your client can actually delve out exactly what is important to them. It's a nice rich workbook that gives several options and scenarios that really just will assist in providing specific guidance to that healthcare agent or the family members. There's also a workbook for caregivers of people with Alzheimer's disease and dementia. There's also a document, a conversation caregiver book for caregivers of a child with a serious illness. So it allows those parents to start formulating thoughts and ideas should their child unexpectedly pass away or near the end of their life because of a serious illness. The AARP actually has great resources on advanced care planning, and it's an option. They actually have every 50 state listed and you can actually look at each state and download those specific advanced care documents.

   They actually have a video produced by a hospital. There's many videos produced by hospitals. There's one specifically on YouTube, so you can actually watch some videos in advance. AARP actually has advanced care documents and videos available if you want to show your client. And also the American Bar Association has resources on healthcare decision making for a consumer's toolkit for healthcare providing at the end-of-life. So there are numerous resources available for your client, for you to be educated on advanced care planning. And just a personal out to all the attorneys that are listening. I would recommend you actually complete your advanced care documents if you haven't already. And honestly, by completing your advanced care documents, you are actually, as you complete them for yourself, you will be become very familiar with advanced care documents. You'll become familiar with the living will, you'll become familiar with the durable power of attorney for healthcare.

   So really I just, at the end of today's conversation and course, if you could reach out, if you don't already have your state's advanced care documents, I would do a research to look at your state and really particularly do it for yourself. Do it for yourself. If you have parents that are still living, if you have adult siblings, if you have aunts and uncles. So really just, if you haven't already completed your advanced care documents, just by you doing your own advanced care documents will make you very fluid and fluent and give you the confidence to be able to talk to your client should they come in for legal advice. And you can offer advanced care planning as especially that you have to offer. Also, you can download these many resources and fill those out and use them as a toolkit yourself. So many options available.

   I really thank you today for taking this course. Again, it's just, I provided the State of Ohio and the State of Washington as examples. Every state has their own definitions, but they're very familiar and similar from state to state. Often states adopt other states, just keep in mind, Washington and Oregon and some of the more liberal states promote end-of-life care, promote allowing natural death. And you just have some conservative states that actually have a little bit more parameters, just to make sure that either the medical definition of permanent unconscious state or terminal condition is met, you're ensuring two physicians have examined your client to make sure that they are in those conditions. So just become familiar with advanced care planning documents. Oftentimes it's a hard conversation to have, it's difficult. Nobody wants to plan their end-of-life care planning. Or sometimes people hold off thinking, "Well, I'm only 48, I'm young and healthy. I'll get to it perhaps when I retire, et cetera." But really now's the time to do that and to do it effectively.

   So I thank you for listening to this presentation, you will have copies of the resources and links. You can find them. Also, the American Medical Association and your state medical association would have resources on advanced care planning. You can go to your local hospital health system. So perhaps you want to be able to have information specific to your treating providers or area hospitals when your client comes in. So reach out to your local hospitals as you learn the Patient Self-Determination Act provide guidance in which hospitals must have those education documents available to educate their patient population on advanced care planning. So I really thank you for listening today. Again, my name is Renee Mallett, a healthcare attorney. I thank you so much.

Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49

Course materials

Supplemental MaterialsHandout

Practice areas


Course details

On demand
1h 02s

Credit information