Health Care Directives and Durable Powers of Attorney: Don’t Leave Home Without Them
 
June 22, 2005
 
Logan Helman Winn- Washington

Long before we were tragically introduced to Terri Schiavo last winter, Karen Ann Quinlan and Nancy Cruzan raised the public’s awareness of the need for advance health care directives. Each of these sad tales has captured the attentions and sympathies of the American public while legal battles were pending before our Courts. Each such case has motivated thousands of people to obtain and execute advance health care directives. Unfortunately, as the news media moves on to the next lead story and the memories of these tragedies fade, many people fail to act on their intentions.

Thirty years have passed since Karen Ann Quinlan, at the age of 21, lapsed into a “persistent vegetative state” after mixing drugs and alcohol at a party. Karen’s family asked to remove her from life support after it became clear that she had no chance of recovery. Opposed by her doctors, in 1976, Karen’s family won the right to remove her from such life support, when the New Jersey Supreme Court held that each person has a constitutional right to privacy. Karen Ann Quinlan kept breathing for almost 10 long years after the respirator was unplugged.

In 1983, 25-year-old Nancy Cruzan lost control of her car and was discovered by emergency medical technicians face down in a ditch. Although they were able to restore her breathing and heartbeat, she was diagnosed as having sustained severe brain damage and lapsed into an unconscious state. When it became apparent she would never improve, her parents asked the hospital to terminate her artificially assisted nutrition and hydration (her then husband had doctors implant a feeding tube). The hospital refused. In 1990, the U.S. Supreme Court held that the doctors could not comply with the family’s request unless there was clear and convincing evidence of their daughter’s wishes. Following the Supreme Court’s decision, some of Nancy’s friends eventually came forward and testified that Nancy would have refused treatment. Nancy Cruzan’s feeding tube was removed in December of 1990 and she died two weeks later.

Today, in response to the conflicting decisions of Quinlan and Cruzan, most states through statute, allow a person to record their wishes and appoint an agent to use substituted judgment to make health care (and other) decisions, in the unfortunate event that they are unable to do so for themselves.

Health Care Power of Attorney

A Health Care Power of Attorney, sometimes called a Durable Medical Power of Attorney or Health Care Proxy, is a document that allows you to designate someone, usually a family member or a friend, as your “agent” or “attorney-in-fact” to make health care decisions in the event you are unable to do so yourself. Your agent will make decisions including, but not limited to, giving or witholding care, the course of treatment, whether to put you in or take you out of hospital, and they can request, receive, and review any medical information. By signing a Health Care Power of Attorney, you will keep the court and other government agencies out of your business. Moreover, since your Health Care Power of Attorney contains detailed instructions, the appointed agent can relieve your loved ones of the stress of making health care decisions they do not know how to make, and you will have peace of mind that you are going to get the treatment and care that you want, even if you are unable to communicate your desires at the time such decisions are made.

With the enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), it is a good practice to include in your Health Care Power of Attorney an express authorization that your health care agent be able to receive complete access to your medical records so that they may make well-informed decisions on your behalf.

Living Will

A Living Will directs your agent and/or your health care provider on end-of-life decisions you have already made, so that your loved ones are not forced to make these decisions in times of stress, when you are unable to speak for yourself. Although forms vary by state, if you should ever be in a “terminal condition,” a “persistent vegetative state,” or an “end stage condition,” and there is no hope of recovery, you can generally direct your health care provider not to administer any “life sustaining procedures,” including artificial nutrition or hydration, or to administer some of the measures, or to keep you alive in accordance with standard medical procedures. Additionally, you can decide if you want medication, such as morphine, to relieve pain and suffering, even if it would shorten your life.

Durable Power of Attorney (Financial)

In addition to medical decisions, in the event you become incapacitated or unable to handle your affairs, you should have in place a Durable Power of Attorney designating an attorney-in-fact to assist you with your financial affairs. In essence, your agent steps into your shoes and may conduct your business and personal matters just as you could if you were able to perform them. For example, the Durable Power of Attorney may enable your agent to pay your mortgage and other bills, attend to business matters, and even begin or continue gifting and other estate planning objectives. The existence of a Durable Power of Attorney can avoid a lengthy and expensive Court proceeding for the appointment of a guardian. Be sure to choose your agent wisely, however, as this is a powerful document.

While putting your wishes in a legal document is an excellent start, by itself, it is not enough. You should communicate your values, your priorities, your beliefs and the quality of life you want for yourself to the person you have chosen as your agent. These issues are emotional and very personal, and it is important to have these conversations before a crisis strikes, when you are rational and have plenty of time to think about what you want. Additionally, you should remember to update your documents every few years to comply with any changes in the law and to make sure your wishes (and chosen agents) are current.

Living Wills and Powers of Attorney are not only for the elderly. As was the case in Cruzan, Quinlan and Schiavo, young people can suddenly and tragically lose the capacity to make health care decisions. Both older and younger people should make their wishes known by means of Powers of Attorney and a Living Will.

The unfortunate events surrounding the deaths of Karen Ann Quinlan, Nancy Cruzan and Terri Schiavo may have a positive impact on society if they cause us to learn about, talk about, and, if desired, execute these documents. Make up your own mind about what you want. The issues raised are emotional and very personal; however, it is best to be informed, and it is even better to have a plan.

Forms and legal requirements vary by state, so it is best to consult with someone licensed to practice law in your state and who is familiar with these types of documents.

For more information, e-mail Logan R. Helman at logan.helman@hklaw.com or call toll free, 1-888-688-8500.