Transcript Understanding the Scope of Advance Directives

AHCA 2013 Annual Conference
Understanding
Advanced Healthcare
Directives
Emily Kile, Esq.
8727 E. Via de Commercio
Scottsdale, AZ 85258
480-348-1590
[email protected]
www.kilekuplaw.com
Living Wills and Health
Care Directives
The Forms
The Law
The Cases
The Law
36-3201. Definitions
1. Agent- adult with authority for health care decisions = POA
2. Artificially administered- food/fluid = medically invasive .
3. Attending physician- physician with primary responsibility.
4. Comfort care- enhance quality of life ≠ not prolonging life.
5. Health care directive- document for health care decisions.
6. Health care POA- written designation of agent = health decisions.
7. Health care provider- person licensed, a hospice or organization
Definitions Cont.
8. Interested person- patient, listed person, provider/employee
directly involved.
9. Living will-means written statement guides treatment
decisions
10. Mental health care POA-designation for mental health care
decisions
11. Physician- licensed M.D. or D.O.
12. Principal- subject of a health care POA.
13. Surrogate- POA person = decisions for a patient.
Revocation of the
Health Care
Directive
 Making a written statement to revoke the entire
document or just disqualify the Agent;
 Orally notifying the Agent/Surrogate or health care
provider;
 Making a new Health Care Directive;
 Any other act that demonstrates a specific intent
to revoke or disqualify the surrogate.
Authority and
Responsibilities
 The Surrogate or Agent is NOT responsible for
paying the health care costs of the person
unless otherwise required to do so.
 The Surrogate cannot authorize or consent to
any action over which the patient could not
lawfully consent.
 The Surrogate who makes good faith health
care decisions for the patient is not subject to
civil or criminal liability for those decisions.
Authority and
Responsibility con’t
Good faith health care
decisions means:
 Acts or refusals made in reliance
on the provisions of a directive
presumed to = good faith.
 Good faith includes all health care
decisions based on reasonable
belief of a patient’s desires or best
interests IF consistent with
patient’s directive.
Bad Faith = evidence
of improper motive
Authority and Responsibility con’t
 Surrogate must make all decisions in
accordance with the patient’s wishes as
expressed in the document.
 If the document does not provide sufficient
information to know what the patient would
want under that particular circumstance,
the surrogate shall base the decision on
the surrogate’s knowledge of the patient’s
values, if known.
Authority and
Responsibilities con’t
If neither the document nor the
surrogate’s knowledge of the
patient’s values can be determined
to the surrogate’s satisfaction, the
surrogate shall decide based on the
surrogate’s good faith belief as to
what is in the patient’s best interest.
 A surrogate who is not the patient’s agent or guardian shall
not have the authority to consent to or approve the
permanent withdrawal of artificial food or fluid.
Responsibilities of
Health Care Providers
A health care provider shall comply
with the health care decisions made
by the patient’s surrogate, unless:
 The decisions are inconsistent with the patient’s health
care directives as known to the provider; or
 The health care provider fails to comply with the decision
or direction because it violates the provider’s conscience,
the provider promptly makes known the unwillingness to
comply and promptly transfers the responsibility of patient
care to another provider.
Responsibilities of
Health Care
Providers con’t
 A health care provider had a DUTY to volunteer about the
patient’s health care, to the patient’s surrogate to the same
degree that they owe this duty to the patient.
 A health care provider who makes good faith health care
decisions in reliance on the provisions of apparently
genuine health care directive or the direction of a surrogate
is immune from criminal and civil liability and is not subject
to professional discipline for that reliance.
Good Faith
“Good faith” includes all health care decisions, acts and
refusals to act based on the health care provider’s
reasonable belief of the patient’s desires, a patient’s best
interests or the directives of the patient’s surrogate if these
decisions, acts or refusals to act are not contrary to the
patient’s express written directions in a valid health care
directive.
Challenging a
Directive
 An interested party may file a petition to determine the
validity or effect of a health care directive or the
decision of a surrogate.
 The court is required to set and conduct a hearing
within five (5) working days of the filing of the petition.
Food and
Fluid
 If the petition is filed to challenge the decision of a
guardian to permanently withdraw the artificial
administration of food and fluid from a patient who is in
an irreversible coma or is in a persistent vegetative
state that the patient’s doctor believes is irreversible or
incurable, and the person has no written directives,
there is a presumption that the patient has directed the
health care providers to provide the patient with food
and fluid to a degree that is sufficient to sustain life,
including, if necessary through a medically invasive
procedure.
Food and
Fluid
The presumption to provide food and fluid can only be
rebutted if either of the following applies:
A. In reasonable medical judgment any of the following
applies:
 The provision of food or fluid in not medically possible.
 The provision of food or fluid would hasten death.
 Because of the medical condition of the patient, the patient
would be incapable of digesting or absorbing the food or fluid
so that its provision would not contribute to sustaining the
patient’s life or provide physical comfort to the patient.
Court
Involvement
B. The court finds both of the following by clear and
convincing evidence:
 The patient is in an irreversible coma or is in a persistent
vegetative state that is irreversible or incurable.
 While competent, the patient manifested the patient’s intent
that medically invasive life prolonging treatment, including
artificial administration of food or fluid, not be administered in
the case of an irreversible coma or persistent vegetative
state that is irreversible or incurable.
Prohibited Requirements
A person shall not be required to execute or prohibit a
person from executing a health care directive as a
condition for providing health care services or insurance.
Out of State
Health Care
Directive
 A health care directive prepared in another state,
district is valid in this State if it was valid in the place
where and at the time when it was adopted so long as it
does not conflict with the criminal laws of the State of
Arizona.
 If there is more than one health care directive and they
are inconsistent, the most recent directive is deemed to
represent the wishes of the patient.
Suicide and Mercy Killing
The laws of Arizona do not approve or authorize
suicide, assisted suicide or mercy killing.
Health Care POA
 An adult may designate another adult to make health
care decisions on their behalf and/or provide funeral
and disposition arrangements in the event of death.
 The documents must include language that is clear
about the intention to create the Health Care POA.
Health Care POA
 Must be signed or marked (or the person indicated to
the notary or witness that the HCPOA expressed the
person’s wishes and that the person intended to adopt
the POA) by the person who is the subject of the POA
and must be dated.
 Notarized or witnessed by at least one adult (we
recommend two witnesses or a witness and notary).
Witnesses/No
tary
A notary or witness shall not be
any of the following:
 A person designated to make health care decisions
on the principal’s behalf.
 A person directly involved with the provision of
health care to the principal at the time the HCPOA is
executed.
If the HCPOA is witnessed by only one person, that
person cannot be related by blood, marriage or
adoption and may not be entitled to any part of the
principals’ estate by will or operation of law at the time
the POA is executed.
Fiduciaries
 A person whose license as a fiduciary has been
suspended or revoked may not serve as an agent
under a POA in any capacity unless the person is
related to the principal by blood, marriage or adoption.
 This does not apply if the person’s license has been
reinstated and is in good standing.
Amendments to the HCPOA
 Amendments to the HCPOA require the same signature
and witness/notary requirements as the HCPOA.
 Except for a change of the agent’s address or phone
number.
Surrogates
 If the patient has a health care power of attorney, the
designated agent shall act as the patient’s surrogate.
 If the patient has a guardian appointed by the court for
the express purpose of making health care decisions,
the guardian is the health care surrogate.
Surrogates
 If there is neither a health care POA nor a court
appointed guardian, then:
 Patient’s spouse, unless legally separated;
 An adult child or if more than one child, by majority who
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are reasonably available for consultation;
A parent of the patient;
If the parent is unmarried, the domestic partner;
A brother or sister of the patient;
Close friend of the patient.
Surrogates
 If none of the people on the list can be located, the
patient’s attending physician after the physician
consults with and obtains the recommendations of an
institutional ethics committee.
 If that is not possible, then the attending physician after
consulting with a second physician who concurs with
the physician’s decision.
Living Will
 An adult may prepare a written statement, known as a
living will, to control health care treatment decisions. It
can be part of the health care POA or a stand alone
document.
 It has the same execution requirements as the HCPOA.
Pre Hospital Medical Care
Directive
 The document must be printed on orange paper.
 In the event of a cardiac or respiratory arrest, directs
the withholding of cardiopulmonary resuscitation by
emergency medical system and hospital emergency
department personnel.
Pre Hospital
Directive
 The law authorizes the agent under a written HCPOA
or guardian to sign if the person is no longer competent
to do so.
 The document must be witnessed by a licensed health
care provider. (licensed to practice medicine, nurse,
osteopathic physician or physician assistants).
Karen
Quinlan
In re Quinlan (New Jersey, 1976)
 Karen was 22 years old and for unknown reasons, ceased
breathing for at least two 15 minute periods. She was
diagnosed as terminally ill and in a persistent vegetative state.
She required a respirator for her breathing and a feeding tube
for hydration and nutrition.
 The Court allowed her father to disconnect the respirator. He
did not request that the feeding tube be removed. She lived
nine (9) years after the respirator was removed.
 The Court reasoned that the State’s interest weakens and the
individual’s right to privacy grows as the bodily invasion
increases and the prognosis dims.
Mildred
Rasmussen
 Rasmussen (Arizona, 1986)
 She was a 70 year woman who suffered three strokes, a
degenerative neural muscular disease and an an organic
brain syndrome. She had a nasal gastric tube for
nutrition. She spent all of her time in bed ‘in a curled up
position.’ She was able to swallow liquids on her own.
 Court concluded that a family member or guardian may
assert the constitutional rights of the patient to refuse
medical treatment using the “best interests” standard.
Nancy
Cruzan
 Cruzan (Supreme Court of Missouri, 1988)
 May a guardian order that food and water be withheld from an
incompetent ward who is not in a persistent vegetative state
but who is otherwise alive and not terminally ill?
 The Missouri Court found that the guardians did not have the
authority to withdraw the hydration and nutrition to Nancy. “The
State’s interest is in the preservation of life, not only Nancy’s life,
but also the lives of persons similarly situated yet without the
support of a loving family. This interest outweighs any rights
invoked on Nancy’s behalf to terminate treatment in the face of
uncertainty of Nancy’s wishes and her own right to life.”
Lessons Learned
 Have a written Health Care Power of Attorney
 Include at least one alternate.
 Review it annually.
 Have a written Living Will that specifies when and what
treatment you want and do not want. Is it limited to just
terminal condition or persistent vegetative state?
 Is a DNR appropriate?
Disaster
doesn’t have
strike if you
plan.
www.azag.gov
Life Care Planning
Obtain Free Living Will, Health Care POA
and Mental Health POA