Kevin stands at the door of Winnie’s nursing home room, tears streaming down his face. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means. Kevin had no choice but to sit back and watch his wife go through a procedure she didn’t want.
The situation with Kevin and Winnie could have been avoided through the use of proper advance directive. An advance directive is actually a collection of documents. What that includes differs depending on your needs and wishes, along with what the law allows. However, it usually means at least a Living Will and a Power of Attorney for Healthcare.
The purpose of this set of documents is to allow you to control what happens to your health care in case you cannot speak for yourself. If certain criteria are met, your doctors must consult with your advanced directive before making decisions about your care.
Usually, what this means is that two doctors agree that an individual is terminally ill, permanently unconscious, or at the “end-stage” of a condition. Once that happens, and the individual cannot express their preferences, doctors turn to the advance directive to figure out what the individual wants.
A Living Will determines what happens to an individual making it, unlike a Last Will and Testament, which determines what happens to their money and possessions. A Living Will describes what healthcare providers can and cannot do to prolong your life and/or ease your pain when you cannot express those preferences yourself. For example, do you want to be placed on a ventilator if you cannot breathe on your own? Do you want a feeding tube and IVs set up, and if so, for how long? Do you want to be an organ or tissue donor?
A Durable Power of Attorney for Healthcare lets you choose someone to make healthcare decisions for you when you cannot. They still must follow your Living Will, but they will be able to make decisions not explicitly considered by your Living Will, in accordance with the facts of the situation. In most states, there are “default surrogate consent laws” which allow family members to make treatment decisions on your behalf, but who is chosen to make these decisions and what they choose to do may not be in accordance with your wishes, as it hopefully would be with a Durable Power of Attorney.
Other documents may be part of an advance directive by law, or they may be worth including on your own volition. These include Do Not Resuscitate orders and Physician Orders for Life-Sustaining Treatment, among others. You might also consider an advance directive in case of a mental health crisis.
This is a difficult subject to consider, and it always seems like it won’t be necessary. But nearly 70 percent of Americans don’t have plans in place for a worst-case scenario, which means for some of them, decisions may be made for them with which they would not agree if they had the capacity to choose. For that reason, it is worth thinking about implementing an advance directive even if it seems unnecessary now.
If you or a loved one would like more information about advance directives, please don’t hesitate to reach out. Contact our Liberty office today to discuss your planning needs.
Are advanced directives only legally binding in a hospital or do they apply at a person’s residence as well
Depends on the terms of the “advance directive.” WE need to make sure we agree on what we mean by the term “advance directive”. There are Living Wills, AKA Advance Directives and there are DNR (Do Not Resuscitate) and OHDNR (Out of Hospital Do Not Resuscitate) – folks frequently incorrectly refer to all three as “legal directives.” See below. You should consult with a qualified attorney. This is from an article I wrote for a state wide attorney conference.
Advance Medical Directives (AKA Living Will) – Effective September 28, 1985, Missouri officially recognized a competent person’s right to decide to die by the withholding or withdrawal of death-prolonging medical procedures, in the passage of §§ 459.010 – 459.055, RSMo 2000. The legislature expressed its ethical and moral polices in § 459.055 – protecting innocent third parties, preventing homicide and suicide and preserving good ethical standards in the medical profession. This legislation was, in part, in response to the difficult facts, circumstances and rulings in In re Quinlan, 355 A.2d 647 (N.J. 1976); Cruzan ex rel. Cruzan v. Dir., Mo Dep’t of Health, 497 U.S. 261 (1990); and Schiavo ex rel. Schinder v. Schiavo, 403 F.3d 1289 (11th Cir. 2005).
“[D]eclarations concerning death-prolonging procedures,” become effective only when the declarant’s condition is terminal and the declarant does not have the capacity to make health-care decisions. Sec. 459.025, RSMo. The declaration is designed to allow a patient to forgo “death prolonging procedures.”
According to § 459.015.1, “[a]ny competent person may execute a declaration directing the withholding or withdrawal of death-prolonging procedures.” The principal’s condition must be terminal and unable to make personal treatment decisions. Section 459.025
The definitions section of the Living Wills statutory provisions is found in § 459.010, RSMo 2000. The definition of a “Death-Prolonging Procedure” is defined in § 459.010(3), RSMo 2000 as follows:
“Death-prolonging procedure”, any medical procedure or intervention which, when applied to a patient, would serve only to prolong artificially the dying process and where, in the judgment of the attending physician pursuant to usual and customary medical standards, death will occur within a short time whether or not such procedure or intervention is utilized. Death-prolonging procedure shall not include the administration of medication or the performance of medical procedure deemed necessary to provide comfort, care or to alleviate pain nor the performance of any procedure to provide nutrition or hydration….
A living will declaration must be:
• executed by a competent person. Section 459.015.1 RSMo 2000, defined in § 459.010(2), RSMo 2000;
• in writing;
• signed by the declarant or by one in the declarant’s present and at his or her direction; and
If the living will is not wholly in the handwriting of the declarant, the living will must be signed in the presence of and witnessed by two or more witnesses that are at least 18 years of age and who may sign for the declarant. Section 459.015.1(14). While not required under Missouri law, the best practices is to avoid the use of witnesses who are related to the declarant by blood or marriage or who would be entitled to financial benefit from the declarant’s death.
Revocation. Section 459.020, RSMo 2000, provides for the revocation of a living will and its effect as follows:
1. A declaration may be revoked at any time and in any manner by which the declarant is able to communicate his intent to revoke, without regard to mental or physical condition.
2. The attending physician or health care provider shall make the revocation a part of the declarant’s medical record.
3. There shall be no criminal or civil liability on the part of any person for failure to act upon a revocation made pursuant to this section unless the revocation is in the patient’s medical record or unless that person has actual knowledge of the revocation.
The use of advance directives is futile if health care professionals do not pay attention to them. Typically, it is the health care agent that advocates for the patient in the health care system. In Missouri, the legal document that appoints this agent is a durable power of attorney for health care. See sections 404.800-.872, RSMo. This document may contain a reference to the advance directive or it can overlap the advance directive by including some of the same conditions. Thus, we strongly recommend that clients have both an advance directive and a durable power of attorney for health care.
Sources for Available Forms
• The Missouri Bar – https://health.mo.gov/seniors/resources/pdf/durable-power-of-attorney-health-care-directive-hipaa-privacy-authorization.pdf
• CaringInfo, A program of the National Hospice and Palliative Care Organization https://www.caringinfo.org/planning/advance-directives/by-state/missouri/
• Missouri Legal Services – https://www.lsmo.org/node/304/living-wills-and-other-advance-directives#LivingWillsandOtherAdvanceDirectives
1. Do Not Resuscitate Order
In Missouri, DNR orders are recognized and complied with in hospitals across the state. In addition, Missouri authorizes the use of a DNR order outside of the hospital. Before 2007, Missouri law did not provide this type of medical authorization, but the lack of a clear directive created confusion within the medical community. As a result, the Missouri legislature passed the Outside the Hospital Do-Not-Resuscitate Act. This law states that a competent Missourian who is older than the age of 18 may give informed consent to an Outside-the-Hospital Do-Not-Resuscitate (OHDNR).
A Do Not Resuscitate (DNR) Order – A legal order written to withhold CPR or Cardio-Pulmonary Resuscitation (compressions/ventilation). A DNR order does not affect any treatment other than that which would require CPR.
An Outside-the-Hospital Do-Not-Resuscitate (OHDNR) authorizes emergency medical services personnel to withhold or withdraw cardiopulmonary resuscitation (CPR) from an individual in a nonhospital setting in the event of cardiac or respiratory arrest. See Department of Health & Senior Services(DHSS) 19 CSR 30-40.600 Outside-the-Hospital Do-Not-Resuscitate (OHDNR) for requirements.
Missouri authorizes a representative who is acting under your healthcare durable power of attorney to make the same decisions regarding your preference for a DNR order to be recognized and followed. A patient’s representative include (1) An attorney in fact designated in a durable power of attorney for health care for a patient determined to be incapacitated under sections 404.800 to 404.872, RSMo; or (2) A guardian or limited guardian appointed under Chapter 475, RSMo, to have responsibility for an incapacitated patient. PRACTICE NOTE: Make sure your representative understands and agrees to follow your wishes and instructions. Even if you have a DNR, if your representative contradicts your DNR, the medical staff will most likely follow the representative’s orders, not your DNR.
OHDNR order form and instruction form are available at the Emergency Medical Services Bureau office, online at http://www.dhss.mo.gov/EMS, https://health.mo.gov/safety/ems/forms.php or obtained by mailing a written request to the Missouri Department of Health and Senior Services, EMS Bureau, PO Box 570, Jefferson City, MO 65102-0570.
Mo. Code Regs. tit. 19 § 30-40.600 establishes a procedure to be followed by personnel to comply with the outside the hospital do-not-resuscitate protocol when presented with an outside the hospital do-not-resuscitate identification or an outside the hospital do-not-resuscitate order.
If you decide you want a DNR order, tell your doctor and health care team what you want. Your doctor must follow your wishes, or your doctor may transfer your care to a doctor who will carry out your wishes. If you are a patient in a hospital or nursing home, your doctor must agree to settle any disputes so that your wishes are followed. The doctor can fill out the form for the DNR order. The doctor writes the DNR order in your medical record if you are in the hospital. Your doctor can tell you how to get a wallet card, bracelet, or other DNR documents to have at home or in non-hospital settings.
– P. Glen Smith