• How Advance Health Care Directives Provide Peace of Mind
  • July 1, 2008 | Author: Denis P. Dillon
  • Law Firm: McLane, Graf, Raulerson & Middleton Professional Association - Portsmouth Office
  • Over the years, we have seen hundreds of examples of why advance health care directives (commonly known as health care powers of attorney or health care proxies) are vitally important for patients. Three prominent examples are Karen Ann Quinlan, Nancy Cruzan, and Terry Schiavo.

    Catastrophe struck all three of these young women at a time when none of them had signed an advance directive. Therefore, their families resorted to a probate court to appoint a health care decision maker. Their families' lives were complicated and made much more stressful by court actions, press coverage, and protesters from both the Right to Life and the Right to Die groups. In the case of Terry Schiavo, there was Congressional intervention! The tragedy of these cases is that most, if not all, of the controversies swirling around the individuals and their families could have been avoided if the individual had signed an advance health care directive.

    These cases highlight the need of people of all ages to sign advance directives. Although these sensational cases captured the attention of the nation, every day in health care facilities throughout the country there are patients, young and old, whose families struggle with issues of incapacity. As the first members of the so-called Baby Boom generation have passed into their sixth decade, these issues will only become more common. 

    Americans are living longer, creating unprecedented stressors on their families. Chief among these is that increasing longevity requires additional health maintenance and care.  With advancing age also comes the inevitable decline in general physical and mental capabilities. This decline raises important legal questions and challenges for aging individuals, their families, and for health care providers and facilities. Advance directives help to meet some of these challenges. Health care facilities that participate in Medicare are required under federal law to provide written information to all patients concerning the right to formulate an advance directive. As a result, health care facilities have been playing a prominent role in encouraging the use of advance directives among their patients.

    Many states enacted provisions creating advance health care directives after the Cruzan case. Each state has specific provisions regarding what is covered by an advance directive and the formalities involved in signing an advance directive, such as the requirement for witnesses and perhaps a notary public. Some states such as New Hampshire adopted a specific format, while other states like Massachusetts have not. It is critical to be familiar with the relevant state law to ensure that an advance directive is legally enforceable. Many states recognize advance directives signed in another state so long as they are valid in the originating state. This is most helpful where a patient has recently moved from another state and has not had the time or ability to update her advance directives.

    Advance directives cannot be considered if the patient is not legally competent. The benchmark for signing advance directives is testamentary capacity. Testamentary capacity is the minimum legal capacity required for a person to make a will. Frequently, lawyers will use this minimum standard when considering whether a client should execute an advance directive. In some cases, a contemporaneous evaluation by a physician or a psychologist may be warranted.

    An advance directive is a prior grant of authority to an agent to make health care decisions for the principal. The agent's power to make decisions springs into effect upon the incapacity of the principal. Under most state laws the principal's medical care providers will determine the principal's incapacity at the time of treatment.

    The choice of a health care agent is critical. The agent should be someone who can make life and death decisions. Before choosing an agent, the principal and prospective agent should discuss the principal's wishes and the agent's ability to deal with life and death decisions. It is also wise for the principal to name an alternate agent in the event the primary agent cannot or will not act. Some states allow for co-agents to be named (two or more persons authorized to act together.) This can create problems when co-agents disagree on treatment.

    An advance directive can be revoked at any time. Some states provide that an otherwise legally incompetent individual has the power to revoke an advance directive. In such a case, a guardian will need to be appointed by a court to act on behalf of the individual.

    If a patient has not signed an advance directive and no longer has legal capacity to sign such a document, most states will require a court appointment of a guardian to act on the patient's behalf. The appointment of a guardian is a formal public legal process. An advance directive is an attractive alternative to a guardianship.

    As the recent controversy in the Schiavo case dramatically highlighted, there are widely divergent views on end of life decisions. Advance directives help patients lessen the potential for the kind of strife that divides families, the country and courts.  Simply choosing someone to make medical and end of life decisions in advance reduces stress in otherwise difficult situations.