De-mystifying Advance Directives

An advance directive for health care is a legal document that allows you to express your wishes for end-of-life care in the event you are unable to communicate those wishes to your doctor. In Oklahoma, an advance directive covers three topics: (1) the living will, (2) the health care proxy, and (3) anatomical gifts.

The Living Will

The main portion of an advance directive is the “living will,” by which you state your preference for the use of certain treatments under certain conditions. This is the most technical part of the document, so it is important to understand what these terms mean.

Conditions Covered

Many people are concerned about signing a document that allows someone else to “pull the plug” on them. But an advance directive only addresses very specific circumstances, namely if you have a terminal condition, an “end-stage condition,” or are “persistently unconscious.”

A terminal condition is an incurable, irreversible condition that, even with the administration of life-sustaining treatment (e.g., respirator or dialysis, pacemaker, surgery, blood transfusion) will, in the opinion of two attending physicians, result in death within six months.

An “end-stage condition” means a condition caused by injury, disease, or illness that results in severe and permanent deterioration indicated by incompetency and complete physical dependency, and that treatment of which would be medically ineffective.

“Persistently unconscious” can mean one of several things. Generally, it means an irreversible condition “in which thought and awareness of self and environment are absent.” A persistent vegetative state (PVS) is due to a partial death of the brain from which a person cannot recover. This is different from a coma because sometimes people wake up from comas. People with PVS might also reflexively move limbs, follow objects with their eyes, and make sounds. A diagnosis of PVS takes time to make, and a person in a PVS state can survive for years on feeding tubes and other life support.

On the other hand, a persistently unconscious condition can mean “irreversible cessation of all functions of the entire brain, including the brain stem.” This diagnosis is determined by a flat electroencephalogram (EEG) and certain medical signs.

Treatments Covered

1. Life-sustaining Treatment

“Life-sustaining” treatments (commonly known generally as “life support”) are medical procedures that support your body to keep you alive when your body is not able to function on its own. The most common treatments are cardiopulmonary resuscitation (CPR) and intubation.

CPR is a group of procedures used when your heart stops (cardiac arrest) or your breathing stops (respiratory arrest). For cardiac arrest, treatment may involve chest compressions, electrical stimulation, or use of medication to support or restore the heart’s ability to function. For respiratory arrest, treatment may be insertion of a tube through the nose or mouth into the trachea to artificially support or restore your breathing function.

Intubation is the placement of a tube through your nose or mouth and into your windpipe (trachea) to help you breathe. This type of treatment may prevent cardiac or respiratory arrest.

2. Artificially Administered Nutrition and Hydration

When a person is no longer able to take nutrition (food) and hydration (fluid) by mouth, he can receive them artificially through intravenous methods. When someone with a life-limiting or other serious illness is no longer able to eat or drink, it usually means that the body is beginning to stop functioning as a result of the illness.

3. Other Treatments

In Oklahoma and many other states, advance directives also give you the option to give more specific instructions regarding end-of-life care. For instance, you can describe other conditions in which you would want life-sustaining treatment or artificially administered nutrition and hydration provided, withheld, or withdrawn. Oklahoma also allows you to state that during a course of pregnancy, you specifically authorize that life-sustaining treatment, including CPR, and artificially administered hydration and nutrition be withheld.

Critically, the withdrawal of these treatments only becomes an issue if their continuation or withdrawal would merely delay the time of your death or maintain you in a state of permanent unconsciousness. Oklahoma law also provides that even if life-sustaining treatment or artificially administered nutrition and hydration are withheld or withdrawn, you will be provided with medication or other treatment to alleviate pain.

Appointment of Health Care Proxy

In addition to a living will, the advance directive also gives you the option to appoint a “health care proxy” to make decisions for you in the event you are unable to do so. This portion of the document essentially operates as a medical power of attorney; however, it limits that power to the extent you have provided instructions for your care in your living will. This begs the question: if you have appointed a health care proxy in an advance directive, should you still get a medical power of attorney? The answer: yes. Some health care providers prefer to see a power of attorney that grants specific powers to your attorney-in-fact and that includes certain HIPAA and other important language. Most people appoint the same person as their health care proxy and their medical power of attorney, so this rarely becomes an issue. But when it comes to your medical care, do you really want to leave it all to chance?

Anatomical Gifts

An advance directive in Oklahoma also allows you to state your wishes about organ donation. One of the options that gives many people pause is where you can donate your “entire body.” This is not the equivalent of saying, “I donate my entire body to science.” If you want to donate your body to science, you need to complete a lot more paperwork. The “entire body” language simply means that you are willing to donate whatever will be useful, be it a lung, a kidney, or anything else. After the donation is made, your body can be disposed of however you wish. To that end, you should be sure to let your loved ones know whether you wish to be buried or cremated.

Alternatives to an Advance Directive

An advance directive is a good document to have because it covers a variety difficult decisions that your family would otherwise be forced to make. However, some people also prefer to have a Do Not Resuscitate (DNR) order or a Do Not Intubate (DNI) order.

A Do Not Resuscitate (DNR) order is a written order from a doctor that keeps a healthcare team from initiating CPR. (Importantly, however, some facilities do not honor DNR orders during surgery, so you should discuss the issue with your surgeon and anesthesiologist before surgery.) A doctor can write and sign a DNR at your request or at the request of your family or health care proxy. If the DNR order is not signed by a doctor, it will not be honored. DNR orders can be canceled at any time by letting the doctor who signed the DNR know that you have changed your decision.

Like a DNR order, a Do Not Intubate (DNI) order is a written order from a doctor that prohibits intubation. Importantly, refusing intubation does not mean that you necessary refuse other techniques of resuscitation, such as mechanical ventilation. If you wish to execute a DNR or DNI order, speak with your doctor about what specific procedures you do or do not want.

Potential Problems

Some healthcare professionals may choose to ignore what is written in your living will if they believe that what is written is against your best interest. In that case, your attending physician is required, as soon as practicable, to take all reasonable steps to arrange for your care by another physician. In some cases, your physician may simply misunderstand the law, medical ethics, or his professional responsibilities. Therefore, it is important that you speak with your doctors about your living will so you can know whether they will honor your request.

End-of-life matters require a great deal of consideration and planning, and it is best to begin planning early. Contact Postic & Bates today for a free, no-obligation consultation regarding an advance directive for health care or other estate planning or legal matters.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]