Controversial op-ed author Bradley Kramer here again. This time, I’d like to spend a few minutes discussing end of life care and end of life directives, since both issues are coming up repeatedly in my practice and seem to be occurring with increasing frequency.
So what is an advanced health care directive? Traditionally, there are two main kinds of advance health care directives (ACHD’s): a living will and a Durable Power of Attorney for Health Care. California also allows the use of a POLST (Physician’s Orders For Life-Sustaining Treatment).
An AHCD and a POLST are not the same. An AHCD allows an individual to make his or her health care wishes known in the event he/she is unable to speak for himself or prefers that someone else to speak for him, and further allows him to legally appoint that person as his agent for health care decisions. By way of an AHCD, an individual can identify his primary physician as well as specify his preferences about accepting or refusing life-sustaining treatment such as CPR, feeding tubes or breathing machines, about receiving or declining pain medications, making organ donations, and otherwise formally express his health care wishes, values and beliefs.
A POLST by contrast became legally recognized in California in 2009. A POLST does not replace an advanced directive but is intended to complement an ACHD, particularly for those who are seriously ill or have been diagnosed with a terminal illness. A POLST helps translate an ACHD into medical orders that must be followed in all healthcare settings (home, nursing home, hospital). Having a completed and fully executed POLST form means that one’s end-of-life health care wishes have been translated into actionable physician orders. Thus, a POLST can help ensure that an individual’s health care wishes are implemented and followed without delay.
With that introduction, my first point of advice to all my clients above age 40? Have an ACHD and a POLST in place. Now. Not when the client is 50 or 60. Now.
Life is far too fragile for a client to wait until your client thinks he or she might die or have a catastrophic injury to start planning for the end. We each need to have a plan for the latter part of our lives, and perhaps more importantly, our loved ones need to have a plan. Without a plan, something very unstable comes into play called an EGO. I’ve seen it happen on multiple occasions and it’s not pleasant for anyone, including lawyers.
Ego. Originally, Freud used the word to mean a sense of self, but he later revised it to mean a set of psychic functions such as judgment, tolerance, reality testing, control, planning, defense, synthesis of information, intellectual functioning, and memory. When refer to ego, I’m discussing a loved one’s belief that they somehow know what their loved one would have wanted at the end of his or her life. But no matter how well they know that person, they don’t. Even if they were told 1000 times about their own mother’s wishes, they still don’t know. Only the patient truly knows. And when the time comes for that issue to be decided, your clients need their wishes to be clearly stated in writing.
As importantly, having a directive in place provides peace of mind for all parties involved. Only under very limited circumstances can a health care institution disobey a health care directive. California Probate Code §4736 provides that “A health care provider or health care institution may decline to comply with an individual health care instruction or health care decision [if that decision] requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.”
Moreover, this override requires a great deal of effort on the part of the health care institution. In fact, California Probate Code §4736 provides that “A health care provider or health care institution that declines to comply with an individual health care instruction or health care decision shall do all of the following: (a) Promptly so inform the patient, if possible, and any person then authorized to make health care decisions for the patient; (b) Unless the patient or person then authorized to make health care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision; [and,] (c) Provide continuing care to the patient until a transfer can be accomplished or until it appears that a transfer cannot be accomplished. In all cases, appropriate pain relief and other palliative care shall be continued.”
Therefore, unless each of these requirements is met by the health care institution, a health care provider must comply with your directive and if he/she does not, that person and/or institution risks the imposition of stiff penalties, both civil and criminal. In the event that the above provisions are not complied with and a patient’s health care directive is not followed, Probate Code §4742 provides that that health care provider or health care institution is subject to liability to the aggrieved individual for damages of two thousand five hundred dollars ($2,500) or actual damages resulting from the violation, whichever is greater, plus reasonable attorney’s fees. Moreover, a person who intentionally falsifies, forges, conceals, defaces, or obliterates an individual’s advance health care directive or a revocation of an advance health care directive without the individual’s consent, or who coerces or fraudulently induces an individual to give, revoke, or not to give an advance health care directive, is subject to liability to that individual for damages of ten thousand dollars ($10,000) or actual damages resulting from the action, whichever is greater, plus reasonable attorney’s fees. These damages are cumulative and not exclusive of any other remedies provided by law, including potentially, criminal penalties.
By not having an ACHD in place, your clients open themselves up to the possibility of litigation on their behalf by family members to attempt to enjoin health care providers from performing…or not performing…certain tasks relating to that client’s health care. These battles are emotionally charged and more often than not, will require expert testimony regarding whether the care being contemplated “requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.”
Given this framework, it is not fair for a client to ask their family members to determine what they think their family member would have wanted at the end of his or her life. This entire discussion need not take place at all, provided that everyone has an advanced health care directive in place.