The first step in any good Health Care Disability Plan, and probably the most important, is to choose your Health Care Agent.

A Health Care Agent, also sometimes called a Health Care Proxy, is the person you select  to speak for you in a medical crisis, in case you are not able to speak for yourself. 

 Under Washington State’s default statute for those who do not makes their own plan, spouses or registered domestic partners are given priority in decision making, followed by adult children.  However, the ultimate decision maker is the patient’s guardian, if one exists, and family disputes can erupt and health care decisions be delayed if family members or friends attempt to be named guardian when there is a lack of consensus about care.

For those who are single and have either multiple children or no children the need to make it clear who has decision making authority is even more important.  In any case, medical crisis decision making usually goes best when the hospital is clear about who the decision maker is and are confident that disputes about who is in charge are not part of the equation.

In naming a health care agent, it is usually easiest to name one person or agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed.  However there may be good reasons for selecting more than one person to serve at a time as well, such as a desire to include all of your children.

If you do chose more than one person you will need to include how you want decisions to be made (i.e.. all must agree v. majority rule.)  It is also possible to include a request that your primary agent consults with others, be it family members or a close friend with greater medical knowledge, while still leaving only one final decision maker.  It may also be possible to name someone you trust who lives near you to serve as a temporary agent until your first choice agent is able to come to the treatment facility if the person you must trust to make ultimate decisions lives far away.  An Attorney familiar with disability planning can help you to think through the pros and cons various arrangements and think creatively about solutions to potential problems that might arise.

The following are come important questions to ask when weighting possible agents.  Keep in mind that the importance of some of these factors may depend on whether your top priority is having your wishes honored or having your family feel best about the process.

1. Does your agent meet the legal criteria for acting as agent or proxy or representative?  (In Washington State, that includes a requirement that the person be at least 18 and not be your doctor or otherwise employed by your health care provider unless they are an immediate family member.)

2. Would your agent be willing to speak on your behalf?

3. Would your agent be able to act on your wishes and separate his/her own feelings from yours?

4. Does your agent lives close by or could they travel to be at your side if needed?

5. Does your agent  know you well and understands what’s important to you?

6. Could your agent handle the responsibility?

7. Will your agent talk with you now about sensitive issues and will listen to your wishes?

8. Will your agent likely be available long into the future?

9. Would your agent be able to sensitively handle conflicting opinions between family members and friends?

10. Can your agent be a strong advocate in the face of an unresponsive doctor or institution?

The decision of who you select as your Health Care Agent should be document in a valid Durable Power of Attorney for Health Care which will be discussed in later posts. 

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 [email protected] or attend one of our free classes.

In past posts we have talked about the situations that might arise that would require someone else to make health care choices for you if you couldn't give informed consent and the kind of choices that they might have to make.  In upcoming posts we will discuss how to plan to have the right person make these choices and how to make sure they get enough instruction to do the job well.  But before we get to that, we thought it would be helpful to explain what happens if you don't make a plan.  In Washington those choices are governed by Statute, specifically RCW 7.70 which is commonly known as the "consent statute." 

 
Under Washington law, if the patient is incapacitated and cannot understand and/or communicate to give informed consent to give or decline a medical treatment, your medical provider must turn to someone else to make that decision.  Washington has a statute that gives a list of people who can provide that consent.  RCW 7.70.065

That statute states that members of the classes of people can provide such consent in the following order of priority:
     (i) The appointed guardian of the patient, if any;
     (ii) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions;
     (iii) The patient's spouse or state registered domestic partner;
     (iv) Children of the patient who are at least eighteen years of age;
     (v) Parents of the patient; and
     (vi) Adult brothers and sisters of the patient.

If the health care provider makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and cannot find that person, authorization may be given by any person in the next class in the order of descending priority. However, no person under may provide informed consent to health care:
     (i) If a person of higher priority under this section has refused to give such authorization; or
     (ii) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class.

The people named in the statute are suppose to do what they believe the patient would have wanted if that can be determined. If they cannot determine that, then to do what they believe to be in the patient's best interests.

For people who do not engage in advance planning this statute creates a number of pitfalls.   

Without a health care agent named in a proper durable power of attorney, many clients will not have surviving family in any of these categories so that their medical choices can only be made with the appointment of a legal guardian.

The people listed in the statute may not be the right people to make choices for them, especially if they are not close to members of their family of origin or if they have very different opinions from them on issues surrounding health care.

There may be more than one person in the relevant category who do not agree, that is common when parents, adult children, and siblings must make unanimous decisions.

Even if every person in the highest category agrees, family members, friends, or other interested parties can always try to override that decision my seeking to be appointed as the person's guardian, which is what has happened in many of the highly publicized family fights over end of life issues in recent years.   Because hospitals know that this can happen, some will want to wait to make decisions in cases without advanced planning until everyone with a possible interest agrees, this can lead to delays in providing or withdrawing care even in cases where no guardianship petition is ever filed.

The decision maker(s) also may have no idea what the client would want them to decide.  That can lead to them making the wrong choice or, even if they are making the right choice, experiencing real agony about not knowing that they are.

These problems can best addressed by selecting a health care agent and appointing them in a Durable Power of Attorney for Heath Care and preparing an Advanced Health Care Directive, Advanced Mental Health Care Directive, or POLST as needed.

If you would like more information on how the consent statute might work in your particular case, are having trouble getting a health care provider to honor your role in the statute, wish to file a guardianship because the statute is resulting in the wrong decisions being made, or you want to create a plan to avoid the problems described above, contact us for a free 1/2 hour consultation at [email protected].

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.

Another area of medical treatment that your family and/or health care agents may need to make decisions about in a medical crisis is the use of antibiotics.  Because antibiotics are such powerful and common drugs, some health care planning documents, including the Washington State POLST form, ask for decision from patients about whether to accept or refuse all antibiotic treatment.  At Phinney Estate Law we find that this all or nothing approach isn't always the best way to think about the issue of antibiotics.

It is important to understand that when antibiotics are prescribed to treat infection the purpose can be both treatment or comfort care.  Think about your answers to the following questions:  Would you want a simple five day course of antibodics to treat a UTI, even if you had terminal cancer knowing that a UTI infection is unlikely to be fatal and can be very painful if untreated?  How about a six week IV antibiotic treatment for sepsis or pneumonia at time when you had such extreme dementia, knowing that either of these infections, common in those who are frail, would otherwise cause a fairly painless death in a relatively short period of time? 

The answer to whether you would want antibiotics in any given situation may depend on your quality of life absent the infection, whether the pain and symptoms of the infection can be otherwise managed, and whether withholding antibiotics is likely lead to a speedy death or merely additional prolonged illness. 

In our experience, agents are best able to make those choices if they have an understanding of what gives your life meaning and the picture treatment goals you would have in different states of health rather than a black and white thumbs up or down on antibiotics altogether.

Almost any website dedicated to teaching CPR bemoans the horrible CPR techniques employed by TV doctors, cops, and other heroes and the bad messages it sends the public about how to do the procedure.  But CPR on TV may have some other negative side effects as well.  It is grossly misleading about survival rates and procedures impact on the body.

Various studies of CPR on television medical dramas have 67% to 77% of patients making a full recovery after CPR.  The true long term survival numbers in US hospitals is around 14%.  Perhaps more significantly patients in both medical dramas, and even more often other action shows, show little impact from the procedure other than being slightly dazed and coughing.  In reality CPR almost always involves cracked ribs, internal bleeding, and long recoveries and often involves serious neurological damage and often extended mechanical life support.   

It is easy to dismiss the success of TV CPR as just good drama but it has real life impacts, just like the bad technique that accompanies it.  In surveys the general public indicates that they believe CPR works 60% to 80% of the time and show little awareness of the impact on patients. 

"If CPR were a benign and risk-free procedure that offered the hope of long-term survival in the face of otherwise certain death, few people would ever choose to withhold resuscitation," said Dr. James Tulsky, co-director of the program in medical ethics at Duke and co-author of a study of CPR on TV. "Controversy surrounds the use of CPR precisely because it can lead to prolonged suffering, severe neurological damage, or an undignified death."  That isn't what people see on TV.

Families are often asked to make choices about resuscitation in the middle of a crisis and their choices may often be influenced by the false images of CPR they experience in pop culture.  Without the true facts or contrary guidance from a patient's advanced health care directive, they may believe CPR is the right choice in every case. 

"In hospitals across the country, patients and physicians struggle with end-of-life decisions that involve whether or not to attempt CPR and other life-sustaining measures," said Dr. Susan Diem, a researcher at the Durham VA Medical Center. "In subtle but powerful ways, the misrepresentation of CPR on television shows undermines trust in scientific data. Because they appear realistic in many respects, these shows blur the line between fact and fiction."

We believe it is important that clients and their families have good information to make wise choices about care both while planning and while make choices. To learn more about how to make sure good choices are made for your care, contact us for a free consultation at [email protected] or (206) 459-1908.

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 [email protected] 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 [email protected].

This month Vanity Fair had an interview with Bill Moyers.  I have always been a big fan of Moyers and was struck by the novelty and thoughtfulness of his answers here.  I was also struck by his answer to one question that was so typical that it could have been from anyone on the street:

How would you like to die?
Gently, at home, free of pain, in the presence of the people I love and who love me.

I am always struck by how common that sentiment is and how uncommon it comes to be even for people who could with proper hospice care.  If you have similar goals, you can make it much more likely that it becomes a reality for you by doing estate planning that includes naming a health care agent, providing a directive for health care, and have a real conversation with your family about your wishes.  

To learn more about how to start that process, contact us for a free consultation at [email protected] or (206) 459-1908.