Once you have taken the step of choosing your Health Care Agent, you need to make sure that selection is properly documented.  Washington has several statutes that govern how you can document this choice. (See RCW 7.70.065;  RCW 11.94.010-RCW 11.94.900.) 

The document that you use to document this choice is something called a Durable Power of Attorney for Health Care Decisions. (“DPOA for Health Care”)

A good DPOA for Health Care will name your selection of Health Care Agents, including your choices of successor Agent.  If you chose to have more than one person serve as an agent, you will need to include how you want decisions to be made.

If you are asking for someone to serve as a temporary agent, the criteria for the transition from temporary agent to permanent agent should be spelled out.  An attorney familiar with disability planning can give talk to you about the pros and cons of various arrangements that might be possible. 

If you wish your agent to consult your Health Care Directive or with any other family member or friend, that should also be documented.  

A good DPOA for Health Care will spell out what specific powers you are granting.  Powers that will typically be seen in a good DPOA for Health Care include: power to give informed consent to allow or withdraw treatment, access to medical records, ability to disclose medical records, employ health care personnel, grant releases, determine residence, summon emergency treatment, provide companionship, and provide advance authority for autopsy, funeral arrangements, and organ donation.  These powers should not be included if they are not ones that you are ready to entrust to the Agent.  An Attorney familiar with disability planning can discuss with you the implications of including or not including any of these powers.

A good DPOA for Health Care will also include a nomination for who should serve as the legal guardian of your person, an extremely powerful role, the need for which will hopefully be eliminated by your DPOA for Health Care.  Because a guardian, if one is assigned, will take precedence over your Health Care Agent in making health care choices for you, failure to nominate your Agent as Guardian may create a temptation for other friends or family members to attempt to be assigned as Guardians if they disagree with the choices the Agent is making leading to the kind of conflict a disability plan is designed to avoid.

One relatively new issue for DPOA for Health Care is to make sure the language of the DPOA is in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  It is possible that if such language is not in your DPOA, a doctor or hospital may not be able to share medical information with your Agent making it impossible for them to do their job.  While all DPOAs drafted after 1996 should have contained such language, the unfortunate reality is that some practitioners relied on old forms and did not make the necessary changes for many years.  If you have a current DPOA and it does not make specific reference to HIPAA, we recommend that you have an attorney look at the DPOA to make sure that it is compliant. 

If you would like help selecting your Health Care Agent or crafting a Durable Power of Attorney, please call or email now for a free half hour consultation to see if our services are right for you.  Tel. (206) 459-1908 or info@phinneyestatelaw.com or attend one of our free classes.

One of the most talked about choices a health care agent may have to make for someone unable to make their own medical choices is whether to keep a patient alive through artificial hydration and/or nutrition. 

If a person is unable to consume or keep down food and fluids they must be given liquids directly into their bloodstream and liquid nutrition needs to be put directly into their stomach through a feeding tube to keep them alive.  This isn’t food and drink in the way that we normally experience it.  

Hospice workers report that when a person is dying, their organs shut down, and they stop feeling hungry or thirsty.  Until that time, what makes a person feel thirsty is having a dry mouth, which is remedied by ice chips or other water in the mouth.  IV liquid won’t prevent thirst and people on feed tubes rarely would feel hungry without.  But these tools are necessary to keep them alive.

While people often take a black and white approach to these tools, the reality is that people often make different choices about them depending on the circumstances.  Most people, if otherwise healthy, would want IV fluid if they became dehydrated due to flu or other illness.  Many would want both fluids and nutrition if they were in a coma that was potentially reversible at least for a few weeks to see if they would regain consciousness.  Most of my clients indicate that they wouldn't want to be kept alive for years through these tools if they were in a permanent conscious condition.  But even if the choice changes from condition to condition, I think it is helpful if the agent understand the choice is to prolong life or not prolong life and not a choice of leaving a patient thirsty or starving as they die.

When a patient cannot give informed consent for their own health care treatment and those choices have to be made by others, one of the most common and difficult choices that must be made is whether to approve resuscitation.

WHAT IS RESUSCITATION
Resuscitation is a medical intervention performed on a person whose heart has stopped beating or whose breathing has stopped.  The process includes compression of the chest over the breastbone, the placement of a tube in the windpipe with artificial breathing, and electrical shocks to the body.

DOES RESUSCITATION WORK?
Resuscitation can be an effective life saving devise and is estimated to double a patient's chances of survival.  As a result, many people know someone whose life has been saved by resuscitation.  However, it is most effective on younger adult patients with certain types of heart problems and in response to complications from other medical interventions.  Studies vary but only about 10% to 15% of people who receive resuscitation actually recover to be discharged from the hospital.  And those rates drop to less than 5% for those who are elderly or who are already suffering from other major illnesses

WHY MIGHT A PERSON DECLINE RESUSCITATION?
Resuscitation is a major medical intervention.  In the best of cases, patients can expect cracked ribs, possible internal bleeding, and a significant recovery period.  For people who are older or already facing chronic or advanced medical problems these impacts can be much more severe.  And although resuscitation can restore a heartbeat in up to 25% of such patients, very few survive long enough to be discharged from the hospital.  Those that do typically suffer serious brain injury and may only recover enough to be discharged to a nursing home and remain on life support until death.  

For patients who are already suffering unmanageable pain or face diminished quality of life, the pain and recovery of resuscitation may not be worth the suffering.  Even elderly clients in good heath may choose to decline resuscitation out of concerns that, even if successful, the changes of their being on extended life support or living in a nursing home with major neurological damage is inconsistent with their choices about end of life.  In such cases resuscitation may also be hard on the patients families as well.  Declining resuscitation can be honestly thought of as letting the patient die a natural death without in anyway being the cause of it.  Once resuscitation is performed and the patient is on life support machines and there is not open of their living without them, the family must make the choice to affirmatively end treatment which often feels very different.

Because resuscitation is such a common and significant choice, we encourage clients to give serious thought the circumstances in which they would or would not want to be resuscitated and to share those with others in an advanced health care directive.  They should also appoint an agent they trust to carry out those choices.  If they are already in a heath state where they would not want resuscitation, we can help them learn about tools to create a standing order to prevent resuscitation even outside a medical setting.    To learn more about these choices and legal tools, contact us for a free consultation at info@phinneyestatelaw.com or (206) 459-1908.

Planning for disability or incapacity tends to be an abstract process for many people.  In our opinion the best disability plans are ones where the person has truly imagined the kind of scenarios that would lead to the plan being used.  Understanding that helps them to think through what kids of decisions would need to be made, what qualities would you need in a decision maker, what kind of guidance would they need, and what conflict could arise.

Temporary Incapacity Due to Illness or Accident
When people think of this kind of planning they often focus on the end of life but many of us will need someone to make choices for temporary incapacity due to illness or accident as well.  At Phinney Estate Law we got a reminder of just how real that possibility was when Mike came down with a horrible stomach virus.  By the time we got childcare for our daughter and got the ER we was so dehydrated that he couldn't give coherent answers to the doctors trying to give him an IV about his medical history or consent for care.  Luckily we had his medical power of attorney on file with Group Heath and Jamie was able to take over making care choices for the hour it took for him to get enough fluids in him to be lucid.  Similar situations can arise when some has an allergic reaction, is render or is knocked out in an accident.  People in these situations usually want full active treatment and are able to resume decision making as soon as their situation is stable.  But for that short period, a good disability plan can make treatment more streamlined and effective.

Cancer
Approximately 20% of all Americans will die of cancer and many more will have successful treatment of the disease.  Cancer deaths peak at age 65 and diagnosis is usually proceeded by relative good health.  Diagnosis is usually followed by intense medical treatment with either recovery or a short terminal phase.  Cancer treatment frequently requires surgery and it is not uncommon that doctors will discover additional tumors during an operation.  Because the patient is usually under and can't give consent, the frequently need to seek authority from others to address those issues rather than risk further surgery.  Chemotherapy and Radiation are also frequently used.  Both can cause unexpected side effects that can render the patient temporarily unable to make medical and other life choices.  If the cancer cannot be treated, the end of life is often accompanied by intense pain that can be managed by medication but not without making the patient too groggy too make their own choices.  This is a period when choices about care can be complicated and when patients often benefit from hospice.

Organ Failure
Deaths from organ failure, generally heart, lung, and kidney disease, peak among patients 75 years old.  These deaths account for about one in four deaths in America. Deaths from organ failure often runs a far bumpier course than cancer. These patients’ lives are punctuated by bouts of severe illness alternating with periods of relative stability. At some point rescue attempts fail, and then death is sudden. While the patients are often able to make all the decisions necessary for early interventions and chronic treatment, frequently others must make choices during crisis including how to manage the final emergency. 

Dementia & Frailty
For many people death following extended frailty and dementia is their worst nightmare. It can be an long and dignity robbing series of losses for the patient, and an exhausting and potentially bankrupting ordeal for the family. But approximately 40 percent of Americans follow this course, and the majority of those living beyond 85 years of age. 

These patients must depend on the care of loved ones, usually adult children, or the kindness of strangers, the aides who care for them at home or in nursing facilities.  Those suffering from physical frailty lose the ability to walk, to dress themselves or to move from bed to wheelchair without a lift. These patients require diapers, spoon-feeding and frequent repositioning in bed to avoid bedsores. Those with dementia, most often Alzheimer’s disease, lose short-term memory, fail to recognize loved ones, get lost without constant supervision and eventually forget how to speak and swallow. They typically need custodial care and someone else to make all of their medical choices and take over their financial management.  These decision makers face many tough choices about when to seek or decline medical care for patients, especially as their quality of life diminishes, and these choices are made more difficult when the decision making takes place over a long period of time with no meaningful input from the patient.

Each of these scenarios present their own challenges, stresses, and conflicts.  In our experience each is made more bearable for all involved if their advanced planning that assigns the right person to make choices and provides them with a guide as to what choices they should make.  If you are interested in setting up a free consultation to get started on such a plan, please contact us (206) 459-1908 or info@phinneyestatelaw.com.

Last Tuesday, I had my first MRI.  The purpose was to positively diagnose a small non-malignant tumor that I will be able to treat with an out patient procedure this fall.  Having never had one before I was struck but the intense noise and the claustrophobic feeling of not being able to move for 40 minutes.  It got me thinking about how much more difficult the test would be if I was in a different state of health. 


For example, my Grandmother has Alzheimer's.  She wouldn't be able to remember the directions to stay still or remember after a few minutes why she was even there or what the loud noises  were about.  How scary!

When we think about the kind of health care choices we may need to make for loved ones who become disabled or the kind of choices we may need someone to make for us, we tend to think of the big choices like life support.  But there are lots of little choices to be made as well and one area that can be challenging is the area of diagnostic testing. 

There are many medical tests that are routinely ordered as people age, like mammograms or colonoscopies.  These tests, while not always pleasant, are wonderful at catching diseases early and allowing treatment.  Other tests - like CT Scans and MRIs - are ordered routinely in response to symptoms and can be helpful in allowing for accurate diagnosis and possible treatment of a variety of problems.  Because these test are routine and rarely involve a life threatening risk, they are often ordered and given with very little thought or deliberation.  However, for people in some medical conditions they may not be appropriate or as routine and safe as they otherwise might be.  For example, people with dementia often need anethesia to remain still and that carries much greater risks than an MRI for a health individual.  The tests may also be more traumatic and destabilizing to individuals who don't understand them and require regular routines. 

If you are acting as a health care agent and are presented with an order for your loved one to undergo one of these tests, in addition to the normal informed consent questions about risk consider asking some of these questions as well.

(1) Why is this test necessary? 
(2) What information would this test give us that we don't have now?
(3) If this test identified a problem, how would that problem be treated?
(4) In what ways might this test be painful or frightening?
(5) Would it require sedation? 
(6) Could symptoms be addressed and comfort provided without this test?

These questions can help you better understand the purpose, benefits, and downsides of testing.  Diagnosis and treatment is the purpose of most modern medicine.  It is part of the medical culture to always want to know the cause of symptoms. But that may not always necessary?  If your loved one has reached a point of ill health or advanced dementia where you would not choose to have them undergo surgery or chemotherapy if they were diagnosed with colon cancer and would instead just choose comfort care measures, then how important is it to have that diagnosis?  If you don't need the diagnosis, why do the colonoscopy?

In my case the test confirmed my doctors' original diagnosis of a hemangioma.  While not a significant problem now, if left untreated in five years it would begin to be painful and impact my facial control.  The treatment will be painful for a few weeks but permanently take care of the process.  Given my age and health it was an easy choice to do the treatment and to do the testing.  If I were making health care choices for my grandmother, I might make a different choice.  It would be helpful in making such a choice that my grandmother was very good about discussing her feelings about treatment options when she was able to make good choices. 

At Phinney Estate Law we work with client to develop estate plans that properly delegate their health care choices if they become disabled AND to provide good direction to their appointed agents.  We also work with clients to make good choices when serving as health care agents or guardians.  Over the next few weeks we will be posting information about these important topics.  

If you want to begin working on your planning or need advice when serving as an agent, contact us to set up a free 1/2 hour consultation at info@phinneyestatelaw.com or (206) 459-1908.