NEW LAW
ON HEALTH CARE DECISION MAKING
On
For starters, it is important to recognize that if you can understand the
medical alternatives and you can communicate, then it is you who is to make the
decisions concerning your care. However, where you cannot understand or
communicate a decision, the new law says that we are to make decisions on your
behalf based on instructions in a Living Will; or directions from a Health Care Agent
appointed in a Health Care Power of Attorney; or directions from a close family
member or other Health Care Representative designated by the patient or
by default based upon a list of priorities set forth in the law.
The Living Will is a statement by you expressing your wishes and
instructions for health care if you have what the law terms an “end-stage
medical condition” or if you are “permanently unconscious”. The Living Will
generally expresses a wish that you be kept comfortable and be given medication
to relieve pain, but that you not be given medical treatments that prolong the
process of dying. However, since the Living Will only applies if you have an
end-stage medical condition or are permanently unconscious, it isn’t the most
effective way of dealing with medical decisions in other situations. That’s why
the new law sets forth rules for Health Care Powers Of Attorney and Health Care
Representatives.
The new
law defines a Health Care Power of Attorney as a written
document where you name another person or persons to make health care decisions
on your behalf. Whereas, the Living Will is merely a statement by you regarding
your wishes about end-of-life decisions, the Health Care Power of Attorney
allows you to designate a surrogate who can make all health care decisions
including the selection and discharge of a health care provider; the approval of
a diagnostic test, surgical procedure or program of medication as well as the
decisions regarding the initiation, continuation and withdrawal of
life-sustaining treatment, including instructions not to resuscitate. The
Health Care Power of Attorney is not limited to end-stage medical conditions.
It is particularly important as a result of the medical privacy law known as
HIPAA. Under HIPAA, your health care information is protected and your spouse
and other close family members may not be able to access that information
without proper authorization under a Health Care Power of Attorney.
While these provisions dealing with the Living Will and Health Care Power of
Attorney are great, the legislature recognized that most people fail to sign
such documents. As such, they included provisions that officially establish a
surrogate decision maker for those who fail to designate one. That is, for the
first time,
·
The spouse.
·
An adult child.
·
A parent.
·
An adult brother or sister.
·
An adult grandchild.
·
An adult who has knowledge of your preferences
and values.
If a divorce is pending, then your spouse does not have
any priority, and if you have adult children that are not the children of your spouse,
then those adult children have the same priority as your spouse.
While this pecking order for the Health Care Representative
may suit many in our society, this list of default decision-makers will
certainly be inappropriate for others. In those cases, it is now even more
important to sign Health Care Powers of Attorney in advance.
To make things easy and encourage the public to address
these issues, the law includes a sample form that combines a Living Will and a
Health Care Power of Attorney into one document. While somewhat lengthy, this
suggested form is a tremendous improvement over
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All contents Copyright © Robert Clofine 2007