What are Advance Directives and Physician’s Orders for Life-Sustaining Treatment?

By: BRANDON DOCKINS, Legal Intern

A tragic lesson – why having an Advance Directive or POLST is important:

In 1990, then 27 year old Terri Schiavo unexpectantly collapsed, went into cardiac arrest and never regained consciousness.  102 Am. Jur. Proof of Facts 3d 95.  Terri was subsequently put on life support with no hope of recovery.  Id.  In 1998, Terri’s husband and legal guardian, Michael Schiavo, petitioned the court to remove the artificial life support.  Id.  The court granted the petition in 2000.  Id.  Terri’s parents fought the petition, appealing the decision up to the U.S. Supreme Court.  Id.  In 2005, after more rounds of litigation and even involvement by a state legislature, governor, Congress and the President, Terri was taken off artificial life support.  Id.

Terri had a constitutional right to determine what medical treatment she received. Cruzan by Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 262, 110 S. Ct. 2841, 2843 (1990).  However, she lacked the ability to voice her desires, setting the stage for the seven year battle that ensued between family members.

This potential issue can now be circumvented.  By creating a simple legal document – viz. an Advance Directive or a Physician’s Orders for Life-Sustaining Treatment (POLST) – you can ensure that your wishes are heard when you are unable to express them, avoiding uncertainty and potential litigation, and insulating your family from the burden of making difficult end-of-life decisions on your behalf.

What are Advance Directives?

An Advance Directive is a legal document that can (1) provide specific instruction for your medical care (i.e. a “Living Will”) and (2) appoint another person to make the decisions for you (i.e. a “Durable Power of Attorney”).  Ideally, an Advance Directive will utilize both a Living Will and a Durable Power of Attorney.

A Living Will is used as a guide for medical personnel to follow in the application of medical treatment when you are incapacitated and either terminally ill (as diagnosed by one doctor) or permanently unconscious (as diagnosed by two doctors).  RCW 70.122.030; WAC 182-501-0125.  Living Wills are flexible and can include a wide array of medical treatment options, ranging from the receipt of pain medication to the application of life-sustaining treatment.  RCW 70.122.030; RCW 70.122.020(5).

A Durable Power of Attorney creates a fiduciary relationship between a principal (i.e. you) and an agent (called an “attorney-in-fact”), whereby the attorney-in-fact acts in place of the principal.  See RCW 11.94.010.  In other words, a Durable Power of Attorney authorizes the attorney-in-fact to act on your behalf when you are unable.  When given medical decision-making authority, the attorney-in-fact has full power to make all health care decisions for the principal when the principal is incapacitated, but in so doing the attorney-in-fact must respect the principal’s known wishes.  The purpose of the Living Will is to express the principal’s wishes, which is why a Living Will and Durable Power of Attorney are commonly used together.

In Washington, Medical care providers, including mental health care, must honor a valid Advance Directive.  RCW 70.97.020.  However, in cases of emergency, an Advance Directive may not be consulted when there is a need for urgency.

What is a POLST?

A POLST is an order signed by your physician and acts as a physician’s order when received or seen by emergency medical care providers. In Washington, a POLST is completed by filling out a simple form with your doctor.[1]  A POLST is only effective when you are incapacitated. See Washington State POLST.  Although a POLST can cover varying medical decisions, a POLST generally covers: (1) whether to attempt resuscitation when you stop breathing and you have no heartbeat, (2) whether you would like pain relief, and (3) whether to employ artificial life support and medically assisted nutrition, including the extent of such support.  Id.

The attributes of a POLST allow it to be effective in times of emergency. This is because the POLST is well known by medical personnel, the form is simple and clearly delineates what to do and when to do it, and the terms are actual physician’s orders.  This contrasts with the reality of having only a Living Will, which may not be consulted in times of emergencies and may even be too vague or ambiguous to provide a certain answer.

Considerations when creating an Advance Directive or POLST:  

The provisions in your Advance Directive or POLST should reflect your values, beliefs and desires.  Relevant considerations will vary with the individual. When considering your options, it is important to recognize and consider the consequences.  Some common considerations are:

1.         What if I am or may become pregnant?  A pregnancy can result in medical providers not following your Advance Directive or POLST.  As such, women that are or may become pregnant should consider having provisions expressly governing instances where you are pregnant during the time of incapacitation.

2.         Do I want to stay at a hospital or at my home?  Your Advance Directives can specify where you would like to stay.  This may be of serious import to those that wish to pass in their home rather than in a hospital bed.  However, choosing to stay at home may limit certain medical options.

3.         What medical care am I comfortable with?  This is one of the most important considerations.  Deciding between pain and no pain or between pulling the plug and remaining on artificial support is a big decision that will likely affect those around you emotionally and financially.  Further, some means of preserving life may be seen as undignified. You should discuss medical treatment options with your doctor and fully consider what each treatment entails, as being fully informed is critical when making decisions of this gravity.

When should you consider an Advance Directive or a POLST?

You should create an Advance Directive now, if you are over 18.  One is never too young or healthy to plan for the future (Terri was 27 and had no warning signs).  In fact, Advance Directives can be even more crucial for younger adults, as artificial support may keep them alive for decades. A POLST, on the other hand, is generally completed by individuals with a serious illness or frailty, or when facing a serious surgery.

Waiting till your later days can inhibit your ability to understand exactly what an Advance Directive or POLST is or when it applies, a common occurrence for the elderly.  As such, making an Advance Directive (and a POLST if applicable) should be made a priority.

What should you do now?

1. Think about what medical care you would like to receive.

2. Consult your physician to talk about the medical realities of varying options and consider whether a POLST is right for you.

3. Talk with your family about the care you would like to receive.

4. Consult an attorney to help craft your Advance Directive.

5. Put all Advance Directives or POLST on file with your medical care provider and keep copies.

Creating an Advance Directive or POLST is just one end-of-life consideration among many.  The attorneys at Wolff, Hislop & Crockett have many years of experience crafting end-of-life instruments and can further assist in planning for your future.  Contact us today for a consultation.

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[1] To see a copy of the Washington State Medical Association POLST form, go to: http://www.wsma.org/doc_library/ForPatients/EndOfLifeResources/POLST/POLST_Master_final_2014.pdf

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Wolff, Hislop and Crockett