End of Life Decisions

Most people have been told that if a paramedic is summoned to their home for an emergency, the paramedics must take any and all necessary procedures to cause the person to keep breathing until transported to the hospital.  In many cases, however, a person may not choose to be kept alive or resuscitated in the unfortunate event of a serious illness, and it is at these times, that the document that is most appropriate for them is reviewed to determine their personal intentions relative to medical care.

In different states, there are different forms that are appropriate, but most documents are somewhat symmetrical in substance as opposed to form.  In some states, a person will nominate a health care proxy agent under a document called a Health Care Proxy where they designate a person to make their decisions for them in the unfortunate event they are determined to be incapacitated and are unable to function mentally or physically in making appropriate and informed decisions.

In other states, a form called an Advanced Medical Directive is completed which has various specific situations that could occur, and the client is asked to complete this form as to what types of procedures they would want to be instituted or withheld in various situations.

Other states may have a Living Will which is basically a document that states that a person does not wish to be kept alive by machines or other heroic methods when they are incapacitated without the likelihood of recovering and having a quality of life similar to what they had before the illness or accident.

Without the aforementioned documents, if a person becomes incapacitated, the medical facility or physician may not be willing to take recommendations or decisions from family members without a court order.  This could result in a significantly prolonged and expensive court proceeding such as the cases that have been made famous such as the Quinlan, Cruzan, and Schiavo matters.  These families were not in agreement with either other family members or medical personnel, and at least one party needed to file documents with a Probate Court in order to obtain approval to make medical decisions.  Unfortunately, these cases became quite contested, and they dragged on for years while the patient was institutionalized, and in some cases, being kept alive only by artificial life support.

When a decision was made, it is also questionable as to whether the decision was the intention of the incapacitated person.  Had the person signed the Proxy or similar document, and possibly also a DNR (Do Not Resuscitate) Order or similar documentation, then the proceedings would not have been necessary and the decision of the patient/client would have been recognized and attended to by both family and medical personnel.

Of course, there may be instances where a family is in agreement with the medical personnel, and even in the absence of a surrogate type document, the decision of the family will be upheld by the hospital or other medical facility.  However, it is usually preferable to have a person’s wishes determined so that the family may merely carry them out as opposed to making them.  It is better for both the family and the client to have these decisions made and discussed ahead of time as opposed to in time of crisis.  In fact, on some documents, the person who is being nominated must assent to their appointment which not only states that they will carry out the person’s wishes, but also, gives them an opportunity to discuss this with the principal who is making the decision so that there will not be any problem or controversy in the future.  Copies of these signed documents should be given to all medical personnel as well as hospitals who may have or will be considered as the preferable facility in the future.  In short, the more planning and preparation that is made now gives rise to fewer problems, expenses, publicity, and issues in the future.

Members of the National Academy of Elder Law Attorneys have had specialized training and extensive additional courses in these areas and may assist with the preparation of documents as well as discussions as to the important decisions that should be made before one signs a critical document.

By Hyman Darling, CELA | Bacon Wilson, P.C. | Massachusetts | www.baconwilson.com/

This article is for informational purposes only and is not intended to be advertising, solicitation, or legal advice.  This article may not reflect the most recent legal changes.  Individual circumstances vary, and laws differ from state to state.  If you have a question about your specific situation, we recommend that you find a certified elder law attorney in your area.