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Thursday, April 9, 2020

Living Wills, Healthcare Powers of Attorney, and DNRs Explained

With everything going in the world today, you will hear people speaking about three types of documents that you may be unfamiliar with or you or not exactly sure what they are and what they do. These three documents are:

 

  1. A Living Will or also called an Advance Medical Directive.
  2. A Medical Power of Attorney or sometimes called a Healthcare Proxy.
  3. A DNR – Do not resuscitate order.

 

In this brief article, we will look at each of these in a little depth.

 

LIVING WILL

A Living Will (or sometimes referred to as an Advance Medical Directive) is often a very misunderstood document. It is a legal document that allows you to establish – in advance – the type of medical care you would want to receive if you were to become permanently or terminally ill. Of course, the most often overlooked aspect of this document is the fact that you must be unconscious and unable to tell your physician or family what type of life-sustaining care you want to receive, since if you are able to communicate your desires to your physician, then there is no need for this advance declaration, as you will be able to communicate your desires yourself. 

In Louisiana, you do not need a physician to complete a Living Will. You can complete the forms on your own, but two witnesses are required to sign with you. The document does not need to be notarized, but it often is which does allow multiple certified copies to be made by the Notary, which can be handy, and will further allow the Notary/Lawyer to provide additional certified copies at a later date if need be. The most important step, however, is to be sure your family understands your wishes and has a copy of your Living Will so they can access it in the event you cannot speak for yourself.

It is also very important to understand when a Living Will can be implemented. And this is the part which is most often misunderstood. But if you take your time and read the document, you will see it is all spelled out in the four corners of the document. For it to come into play, you must be:

 

1.    Terminally ill and unable to tell your physician your wishes about healthcare treatments.

2.   Two physicians, one of whom must be your treating physician, must decide that you have no reasonable possibility of surviving.

And here is the actual language from the Living Will form that is often used in the State of Louisiana.

 

If at any time I should have an incurable injury, disease or illness, or be in a continual profound comatose state with no reasonable chance of recovery, certified to be a terminal and irreversible condition by two physicians who have personally examined me, one of whom shall be my attending physician, and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life-sustaining procedure would serve only to prolong artificially the dying process, I direct . . .

As you can tell, the rules are spelled out clearly that it only comes into play with a terminal illness and no chance of recovery. 

Now, it does give you a choice to make. In Louisiana, you can choose one of the following options regarding nutrition and hydration.

 

(initial one only):

_______ That all life-sustaining procedures, including nutrition and hydration, be withheld or withdrawn so that food and water will not be administered invasively.

_______ That life-sustaining procedures, except nutrition and hydration, be withheld or withdrawn so that food and water can be administered invasively.

 

 

These two choices all stem from the case out of Florida many years ago, where there was a family dispute about whether their loved one wanted a peg tube or not. Again, keep in mind, this advance choice will only come into play when you are unable to speak and will die no matter what they do.

One other question that arises is about pain meds. The Living Will form provides for that as well.

 

I further direct that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care.

So, if you come away from this article with anything, it is this. Regardless of your condition, if you are able to speak and tell your physician your wishes about life-prolonging treatment, your Living Will cannot be used. But the purpose of it, is in the situation where you cannot speak, and you are dying with no chance of recovery, you are letting your family and your physicians know your intention that the declaration shall be honored by them as your final expression of your legal right to refuse medical or surgical treatment and accept the consequences from such refusal.

HEALTHCARE POWER OF ATTORNEY

 

A Healthcare Power of Attorney (or Healthcare Proxy) is a document that allows you to name a person (any person) who can act on your behalf to make healthcare decisions for you if you become unable to make them for yourself. Unlike a Living Will, it is not limited to times in which you are terminally ill and unable to speak for yourself. The person you appoint is referred to as “the Agent.” As Agent, they can make any and all medical decisions for you. They can also get access to your medical records and discuss your case with your doctor.

It is imperative that the Power of Attorney be Durable, which means it survives the incapacity of the person who made it. By law, it is now Durable unless stated otherwise. Even though that is the law, my form still has this language to make sure there is no question.

 

Principal further declared that pursuant to Louisiana Civil Code art. 3026, this Power of Attorney shall not be terminated by Principal's incapacity, disability or other condition making express revocation impossible or impractical.

 

The Agent does have the power to authorize and refuse medical treatment for you. This authority is recognized in all medical situations where you are unable to speak for yourself. However, it does work in conjunction with a Living Will, if you have one, as the Agent needs to abide by those wises. In other words, the Living Will takes precedence over the Healthcare Power of Attorney.

A Healthcare Power of Attorney is different than a financial power of attorney as it only addresses issues related to healthcare. Often, if you do a Financial and Medical Power of Attorney, they will be combined into one document, provided that the agent is the same for both. Sometimes, people will have separate documents or will have different agents for each respective thing - financial and medical.

It goes without saying, great thought must be used in deciding who you chose as your Agent, as it does give them great power. However, it’s something that must be done. The reason why we execute them now is often if a person does not have one when it is needed most, they are no longer capable of signing one due to competency issues, and thus the family is left with Interdiction, which can be a very expensive, drawn-out, legal process. And because of its importance, you should also list substitute agents in case the one you appointed is unable or unwilling to act. 

Lastly, I do have a lot of clients who want to list Co-Agents, which means two people making the decisions. I am not saying it can’t be done. But if possible, name one person. That way, the healthcare workers, or financial advisers for a financial power of attorney, have one voice to hear from and one person making decisions. If you have Co-Agents, and they don’t agree on how to proceed on something, it can create horrible situations. 

It is essential that you communicate to your family that you executed a Power of Attorney and Living Will so they know where they are and who to turn to should the time come to implement them.

 

DNR

 

A DNR stands for a Do Not Resuscitate Order. A DNR gives a person the opportunity to exercise their right to limit care received in emergency situations or special circumstances. Essentially, the DNR tells others that you do not wish to receive CPR (cardio pulmonary resuscitation) when your heart stops functioning or you have stopped breathing.

This document is issued by the patient's doctor after consulting with the patient or their authorized representative – which can be their agent under a Healthcare Power of Attorney.

DNR orders are used primarily by people who are already critically ill and feel strongly that they do not want life-prolonging treatment when close to death. If you do not have a DNR order, emergency medical personnel must use all available measures, no matter how invasive, to save your life. While this procedure is a vital life-saving measure for someone who is generally healthy when they have a cardio pulmonary crisis, it actually can be physically harmful to someone who is frail from prolonged illness or old age. People in this circumstance often choose DNR.

 

LAPOST

I would be remiss if I did not mention something new in this field to the landscape of Louisiana. It is called Lapost. 

A LaPOST form is a doctor’s order that helps you keep control over medical care at the end of life. Like a Do Not Resuscitate (DNR) order, the form tells emergency medical personnel and other health care providers whether or not to administer cardiopulmonary resuscitation (CPR) in the event of a medical emergency. A LaPOST form may be used in addition to -- or instead of -- a DNR order. The LaPOST form may also provide other information about your wishes for end-of-life health care, as explained just below. It begins with conversations with your doctor, as you work through each and every wish and desire for treatment regarding end of life care.

 

CONCLUSION

An attorney friend of mine gives seminars with me. We refer to Wills, Living Wills, and Powers of Attorney, as the sacred Triumvirate. The three most important documents that every person should have. I hope this article helped in a small way to explain some of these important documents, the purposes behind them, and why they should be part of your estate plan.

Chip LoCoco

Attorney at Law

 


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