Why Everyone Should Have a “Healthcare Power of Attorney and Healthcare Directive”
When you prepare to make a Will, many attorneys will suggest to you that you have an up-to-date “Healthcare Power of Attorney and Healthcare Directive” (a “Healthcare Document”).
Why? From an attorney’s perspective, I want you to execute a new Healthcare Document at the same time as your Will because: (1) It is efficient from the point of view of time. A self-proving Will should be signed in front of two witnesses and notarized–and so should your Healthcare Document. (2) It is efficient because both the Will and the Healthcare Document require you to admit to your self that you might, in fact, die. (Otherwise–why get a Will?) (3) It is efficient because both the Will and the Healthcare Document require you to think about the people in your life who are your “safety net”–those people who can help your family after you die and those people who can help you when you are sick. (4) Finally, a Healthcare Document simply is good for you to have.
Sometimes I think a Healthcare Document is equally or more important for a person than a Will is. Why? Because the Healthcare Document can sometimes affect your comfort while you still are living–but are in the process of dying.
Don’t get me wrong, I understand that having a Will can give a person great peace. Through a Will, you know that your wishes will be respected after you die; you know that you will take care of your family; you know that you have left an orderly estate instead of confusion. (If you are prone to this kind of thought: you know you will not leave an unknown, overworked, and grumpy person complaining about how messy and irresponsible you were.)
But really–if you are in a state of crisis, if you cannot speak for yourself, if you cannot think for yourself, you need someone in life to help you. A Healthcare Document enables you to appoint another person to speak and act for you when you are having a healthcare crisis.
Whenever you go to a hospital, federal law requires the hospital to ask if you have a “living will.”
Now, in Pennsylvania, frequently, the “living will” has been combined with a “Healthcare Power of Attorney” to result in the “Healthcare Power of Attorney and Healthcare Directive.”
There are two parts to a “Healthcare Power of Attorney and Healthcare Directive.”
In one part—the Healthcare Power of Attorney—you appoint another person, starting at the date that you sign the document—to have authority to look at your healthcare records. It is a HIPAA release.
The person who you appoint is called your “Healthcare Agent.”
In the other part—the Healthcare Directive—you say, when the time comes that you no longer can make decisions for yourself, your Healthcare Agent can step in and make decisions for you.
The Healthcare Agent only has authority to make healthcare decisions for you only when you cannot make decisions for yourself.
In Pennsylvania, the terms “Living Will” and “Healthcare Directive” mean the same thing. They are both documents where you can say that, under certain circumstances, you do not want care that extends your life. You only want care that keeps you from pain.
Pennsylvania law limits the circumstances in which life-sustaining treatment can be withheld by a Healthcare Agent. The circumstances are: (1) when you have an “end stage medical condition” and (2) when you are in an irreversible coma from which it is not likely you will be aroused.
In order for your Healthcare Agent to decide to withhold some kind of life-sustaining treatment (for example, under some circumstances, tube feeding) a doctor needs to certify that either: (1) you have an “end-stage medical condition” or (2) you are in an irreversible coma from which it is not likely you will be aroused.
Under these circumstances, your Healthcare Agent can act for you and decline treatment that is meant to prolong life—but according to your wishes.
When you choose a Healthcare Agent it is a good idea for you to talk with that person about what your wishes are—how you feel about pain relief; how you feel about different kinds of treatment–such as tube feeding, ventilation, antibiotics; and how you feel about what may be an irreversible coma.
Your feelings may change over time. At one time in your life you may want more care than at another time.
The Pennsylvania legislature has a sample “Healthcare Power of Attorney and Healthcare Directive.” It lists a variety of treatments and asks you to choose whether or not you want the treatment. (For example, it asks you to chose if you want antibiotics if you are dying, if you want chemotherapy, if you want tube feeding.)
Some people have strong feelings about a particular treatment—for example—tube feeding, but most people with whom I have spoken say that they don’t know what treatments they want declined when they are in an irreversible coma or dying.
I have developed a form that, instead of listing specific forms of medicine, follows the idea that you trust your Healthcare Agent to make decisions that keep you from pain. What this means is that any treatment would be acceptable if it kept you from pain.
Different procedures—even ones you think that you would never want (such as tube feeding)—can sometimes serve not to prolong your life, but to save you from pain if you are dying.
If the Healthcare Agent is authorized to make decisions based on avoidance of pain, you will be protected, and there will be less confusion when your Healthcare Agent is called upon to make decisions on your behalf.