At the time of admission to the hospital, a nursing home, assisted living or other health care facility, you will be asked if you have advanced directives (a Living Will, Power of Attorney and Health Care Proxy). Many attorneys, doctors and other health care providers have copies of living wills, health care surrogate designations and Do Not Resuscitate forms. However, if you want to make a power of attorney, we strongly advise that you consult with an attorney. We do not recommend that you use the kind that you can buy at the office supply store. As seniors and/or retirees we need to make sure that these items are in order to avoid problems for our loved ones & ourselves if an unfortunate situation should arise.
When presented with a living will the first consideration we must make is the very first stipulation in the document, as written into the law. Is the patient a.) terminal b.) end stage or c.) in a persistent vegetative state? If not any of these three, then the living will has not been activated. How do we know if any of these three conditions are true? Two physicians must attest to the resident’s condition. If we do not have those attestations, then the living will has not been activated.
The first consideration we make when presented with a durable power of attorney is “Does the patient lack capacity to make health care decisions?”
Often health care professionals can make an educated guess if a patient lacks capacity for decision making, but only when the attending physician has stated the patient lacks capacity, does the designated health care surrogate have the ability to make health care decisions. In fact, the facility must notify the health care surrogate that the patient lacks capacity and notify them that their duties as health care surrogate have begun. Up until that point, every patient is their own health care decision maker.
That is not necessarily true of the financial durable power of attorney.
If a patient comes to our nursing home, and has not designated a health care surrogate, the facility may appoint a Health Care Proxy. There is a priority list of people who can serve as proxy written into the statute. They are:
- Judicially appointed guardian.
- Patient’s spouse
- An adult child of the patient, or the majority of adult children
- A parent of the patient
- An adult sibling of the patient, or a majority of adult siblings
- An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained contact with the patients activities, health and religious or moral beliefs
- A close friend of the patient.
There is a standard of proof that must be upheld when either the surrogate, proxy or guardian makes health care decisions. The health care decisions they make for the patient must be as the patient would make if they were capable of giving or with holding informed consent. In the event of decisions about life prolonging procedures, the decision maker must show clear and convincing evidence that this was the patient’s wish. Most often that clear and convincing evidence is the living will. It can also be a video or audio recording, or on occasion, the court has allowed withdrawal based on several witnesses testimony that is what the patient stated.
In the area of Do Not Resuscitate Orders, this is a separate order in the state of Florida and is not related to the living will. People often say, ‘Well we thought the living will took care of all that” However, I remind you that for the living will to be in effect, the patient must be terminal, end stage or in a persistent vegetative state. Resuscitation refers to the patient who is in cardiac or respiratory arrest. This order is not precluded by a terminal diagnosis. If a person does not have a DNR, a rescuer will apply force to the chest with the hands, thus compressing the heart, and breathe into the mouth, filling the lungs with air. CPR is standard procedure in hospitals and nursing homes in the U.S. Unless CPR and defibrillation are provided within minutes of collapse, few attempts at resuscitation are successful.
Having advance directives in place assures you that your health care surrogate can follow your instructions when you are no longer able to make decisions for yourself. Make sure you discuss in detail your wishes with your health care surrogate so that they will have no doubts about what your decision would be if you were able to say yourself. Advance Directives are a way to continue to have a voice in your life to the end of your life. It is never too early to take care of these matters.