Effective Planning for Health Care Effective Planning for Health Care Decision-making at the End of LifeDecision-making at the End of Life

Charles P. SabatinoCharles P. SabatinoCommission on Law and AgingCommission on Law and Aging

American Bar AssociationAmerican Bar AssociationAugust 2006August 2006

These slides are available at:These slides are available at:

www.abanet.org/aging/cleconferencematerials.htmlwww.abanet.org/aging/cleconferencematerials.html

I. The Legislative Landscape of I. The Legislative Landscape of Surrogate Decision-makingSurrogate Decision-making

Default Surrogate LawsDefault Surrogate Laws Health Care Advance DirectivesHealth Care Advance Directives

• Health Care DPAsHealth Care DPAs• Living WillsLiving Wills• Mental Health Advance DirectivesMental Health Advance Directives

Out-of-Hospital DNR LawsOut-of-Hospital DNR Laws Organ Donation LawsOrgan Donation Laws Guardianship Laws Guardianship Laws Physician Assisted Suicide (Oregon)Physician Assisted Suicide (Oregon)

Outline P. 2Outline P. 2

P. 4 - 5P. 4 - 5

II. Why Ads Have Not II. Why Ads Have Not Worked as Well as Worked as Well as

HopedHopedA great idea but:A great idea but:

• Most people don’t do. Most people don’t do. • When they do, a standard form doesn’t When they do, a standard form doesn’t

provide much guidance. provide much guidance. • When they name an agent, they seldom When they name an agent, they seldom

explain their wishes to agent.explain their wishes to agent.• Even if they do, health care providers Even if they do, health care providers

usually don’t know about the directive. usually don’t know about the directive. • Even if providers know directive exists, it Even if providers know directive exists, it

isn’t in medical record.isn’t in medical record.• Even if in the record, it isn’t consulted.Even if in the record, it isn’t consulted.

P. 6P. 6

Starting Point:Starting Point:What ADs What ADs Can’tCan’t Do Do

1.1. Can’t provide cookbook directions.Can’t provide cookbook directions.2.2. Can’t change fact that dying is Can’t change fact that dying is

complicated.complicated.3.3. Can’t eliminate personal ambivalence.Can’t eliminate personal ambivalence.4.4. Can’t be a substitute for Discussion.Can’t be a substitute for Discussion.5.5. Can’t control health care providers.Can’t control health care providers.

P. 7 - 8P. 7 - 8

What ADs What ADs CanCan Do Do1.1. CAN be an important part of a CAN be an important part of a

developmental process of advance developmental process of advance planning communicationplanning communication

2. CAN help you stop and think and 2. CAN help you stop and think and DISCUSSDISCUSS. . – Less about specific medical decisions, more about Less about specific medical decisions, more about

VALUES & PRIORITIES: What’s important to you VALUES & PRIORITIES: What’s important to you in living? What conditions of living may outweigh in living? What conditions of living may outweigh the value of continued life?the value of continued life?

3. CAN empower and give DIRECTION if 3. CAN empower and give DIRECTION if reflective of the patient’s voicereflective of the patient’s voice. . – Not necessarily the legislature’s canned Not necessarily the legislature’s canned

languange.languange.

P. 8P. 8

III. More Effective Advance III. More Effective Advance PlanningPlanning

1.1. Emphasize the process, not the Emphasize the process, not the transaction.transaction.

* * ** * *4. Engage your client. Offer a workbook 4. Engage your client. Offer a workbook

approach, e.g., see approach, e.g., see Lawyer’s Tool Kit Lawyer’s Tool Kit for Health Care Advance Planning for Health Care Advance Planning (www.abanet.org/aging)(www.abanet.org/aging)

5. Give priority to appointment of Proxy.5. Give priority to appointment of Proxy.

6. Stress periodic review of one’s wishes.6. Stress periodic review of one’s wishes.7. Have you done your own advance

planning?

P. 8 - 9P. 8 - 9

Drafting IssuesDrafting Issues

1.1. Basic legal requirementsBasic legal requirements

2.2. Selecting an AgentSelecting an Agent• Who’s prohibited?Who’s prohibited?• Criteria – Criteria – Tool KitTool Kit for Advance Health Care for Advance Health Care

PlanningPlanning• Co-Agents?Co-Agents?• What is your duty to What is your duty to

consultation/education? consultation/education? NEW: See NEW: See Making Medical Decisions for Someone Making Medical Decisions for Someone Else: A Maryland HandbookElse: A Maryland Handbook. . Consider adapting a Consider adapting a version for your state.version for your state.

P. 9P. 9

www.abanet.org/agingwww.abanet.org/aging

AppendixAppendix

Drafting IssuesDrafting Issues

3. Agent’s Scope of 3. Agent’s Scope of Authority/DiscretionAuthority/Discretion• Be aware of statutory limits & post Be aware of statutory limits & post

mortem authority (VA)mortem authority (VA)• Be explicitBe explicit• Maximum discretion? Do you want Maximum discretion? Do you want

agent to be able to override written agent to be able to override written instructions, if any?instructions, if any?

SeeSee (Appellant) v. Maryland Dept. of Health & (Appellant) v. Maryland Dept. of Health & Mental HygieneMental Hygiene (February 25, 2002): (February 25, 2002):

www.dhmh.state.md.us/ohcq/download/alj.pdfwww.dhmh.state.md.us/ohcq/download/alj.pdf

P. 10P. 10

Drafting IssuesDrafting Issues

Often overlooked– Authority to . . .Often overlooked– Authority to . . .• Make anatomical gifts, autopsy, disposition of Make anatomical gifts, autopsy, disposition of

remainsremains• Contract for, hire, fire health care & support Contract for, hire, fire health care & support

personnel personnel • Direct care even if Pregnancy Direct care even if Pregnancy • Change domicile Change domicile • Execute releases & waivers (the “carrot”)Execute releases & waivers (the “carrot”)• Institute legal action (the “stick”).Institute legal action (the “stick”).• Consent to Consent to experimental treatment experimental treatment • Delegate d-m during absence Delegate d-m during absence • Care for petsCare for pets• Determine Visitation (especially important in Virginia)Determine Visitation (especially important in Virginia)• Make mental health decisionsMake mental health decisions

Be sure to coordinate authority with Property DPABe sure to coordinate authority with Property DPA

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Drafting IssuesDrafting Issues4. Effective Date: 4. Effective Date: immediate or immediate or

springing?springing?5. Determining D-M Capacity5. Determining D-M Capacity6. Treatment Instructions? 6. Treatment Instructions?

If you do include specific instructions…If you do include specific instructions…•Medical history is importantMedical history is important•Focus on quality of life. What does that Focus on quality of life. What does that

mean for client? Benefits & burdens are mean for client? Benefits & burdens are subjective. Consider Workbook approach, subjective. Consider Workbook approach, or “Values history”or “Values history”

•Never say never, unless you really mean it.Never say never, unless you really mean it.•Don’t overlook secondary illnessesDon’t overlook secondary illnesses

P. 11P. 11

P. 12 - 13P. 12 - 13

..

..

Workbook exampleWorkbook example

Drafting IssuesDrafting Issues

Other instructions:Other instructions:• Pain ControlPain Control• Engage principal to greatest extent Engage principal to greatest extent

possiblepossible• Nominate GuardianNominate Guardian• Perhaps designate primary physicianPerhaps designate primary physician• Eliminate unwanted surrogatesEliminate unwanted surrogates• Anatomical GiftsAnatomical Gifts• Carrots and sticksCarrots and sticks• PregnancyPregnancy• PetsPets• Personal/environmental/emotional.Personal/environmental/emotional.

See See Five WishesFive Wishes at at www.agingwithdignity.orgwww.agingwithdignity.org

P. 14P. 14

www.AgingWithDignity.orgwww.AgingWithDignity.org

Drafting IssuesDrafting Issues

Post-execution LogisticsPost-execution Logistics•An invisible AD =An invisible AD = no AD no AD•Still haven’t talked to physician or agent?Still haven’t talked to physician or agent?•Wallet cardWallet card•AD registriesAD registries

– e.g., AZ, CA, MD, MT, NCe.g., AZ, CA, MD, MT, NC– USLivingWillRegistry.comUSLivingWillRegistry.com– Docubank.comDocubank.com– Full Circle Registry: Full Circle Registry:

protectedlivingwill.comprotectedlivingwill.com– NationalLivingWills.comNationalLivingWills.com–America Living Will Registry: ALWRAmerica Living Will Registry: ALWR.com.com

•Driver’s License Notice?Driver’s License Notice?

P. 14 - 15P. 14 - 15

Drafting IssuesDrafting Issues

Provide a framework for review…Provide a framework for review…

When any of the 5 D’s occur:When any of the 5 D’s occur:1.1. You reach a new You reach a new DECADEDECADE2.2. You experience a You experience a DEATHDEATH of family or friend of family or friend3.3. You You DIVORCEDIVORCE4.4. You receive a new You receive a new DIAGNOSISDIAGNOSIS5.5. You have a significant You have a significant DECLINEDECLINE in your in your

condition as measured by Activities of condition as measured by Activities of Daily Living (ADLs)Daily Living (ADLs)

P. 16P. 16

IV. HIPAA IssuesIV. HIPAA Issues

Access to protected health information Access to protected health information by…by…

• Agent under health care DPA ? – Not a problem.Agent under health care DPA ? – Not a problem.

• Putative agent under springing power ? Putative agent under springing power ? Could be a problem. Could be a problem.

• Close family member ? – Could be a problem.Close family member ? – Could be a problem.

P. 16P. 16

www.hhs.gov/ocr/hipaa

Process-Oriented Advance Planning Process-Oriented Advance Planning SummarySummary

• Don’t do McDirectivesDon’t do McDirectives• Your client probably can’t pay you Your client probably can’t pay you

enough to go through the process enough to go through the process in depth, so give the client the in depth, so give the client the tools to do the important part.tools to do the important part.

• Value WorksheetValue Worksheet• Thought-provoking exercisesThought-provoking exercises• Provide Different model ADsProvide Different model ADs• Ensure client has talked to proxy & doctorEnsure client has talked to proxy & doctor• Help educate the agent/proxyHelp educate the agent/proxy

• Periodic review – the 5 D’s.Periodic review – the 5 D’s.

V. POLST – Beyond ADsV. POLST – Beyond ADs P. 18-19P. 18-19

• Last 30 yrs: standardizing pt. communications Last 30 yrs: standardizing pt. communications ADsADs

• Tipping Point: Tipping Point: POLSTPOLST Paradigm Paradigm standardizing standardizing

physicians EOL orders. Focus on here and physicians EOL orders. Focus on here and now.now.

• Oregon’s Oregon’s Physicians Orders for Life-Sustaining Physicians Orders for Life-Sustaining TreatmentTreatment – requires: – requires:

1.1. Doc to find out patient’s wishes re: Doc to find out patient’s wishes re: CPR, care goals (comfort vs. CPR, care goals (comfort vs. treatment), antibiotics, N&H.treatment), antibiotics, N&H.

2.2. Translate into doctors orders on Translate into doctors orders on visually distinct (bright pink) med file visually distinct (bright pink) med file cover sheet.cover sheet.

3.3. All providers ensure form travels with All providers ensure form travels with patient.patient.

www.POLST.orgwww.POLST.org

VI. ResourcesVI. Resources

• Selected Advance Directive Selected Advance Directive FormsForms

• Work Book ResourcesWork Book Resources• General EOL Care ResourcesGeneral EOL Care Resources• Guidance for ProxiesGuidance for Proxies

• Selected BibliographySelected Bibliography

P. 20 - 22P. 20 - 22

We sometimes seem to act as though We sometimes seem to act as though dying were solely the concern of the dying were solely the concern of the dying person. The fact is, we die, as dying person. The fact is, we die, as we live, in a web of vital and complex we live, in a web of vital and complex relationships.relationships.

-- Bruce Jennings, The Hasting Center-- Bruce Jennings, The Hasting Center