Advance Directives: Why You Should Put Your Wish (cont.)

MEMBER QUESTION:
Why do we have the advanced directives and then a family member or the durable power of attorney changes their mind? Even after the patient's requests have been documented and when the patient is not able to make their own decisions?

SWANSON:
If you have a living will and a medical power of attorney, can the medical power of attorney overrule the living will when you are incapacitated? There are situations where a medical power of attorney could and might overrule a patient's wishes stated in a living will. Because that's possible, it makes it extremely important that the patient, when assigning a medical power of attorney, that they clearly communicate their wishes and make sure the power of attorney is willing and able to carry out those wishes because they will be depending on them to do that.

Even though it may happen -- that a power of attorney might overrule -- when it comes right down to having to make a decision, in most cases it would not happen. Before any decision was made, the hospital or hospice personnel would discuss with the power of attorney the difference between their opinion and the patient's stated wishes, and would always advocate with the patient's stated wishes.

MEMBER QUESTION:
Can you make exceptions in this document, i.e. "if there is doubt of severity of illness, the named decision maker must get other opinions before carrying out termination of treatment"?

SWANSON:
Most living will documents will give you the opportunity to make exceptions regarding certain treatments or certain situations. If you feel strongly about those, it would be important for you to communicate that in your living will. Also, I'd add that sometimes people misinterpret the living will saying it's a document that tells medical personnel all the things they do not wish to happen in a medical crisis. But, in fact, a living will also gives an individual an opportunity to communicate what they do want. So it actually serves both purposes.

MEMBER QUESTION:
What happens when you have an advanced directive and you are visiting in another state?

SWANSON:
All states will honor living wills and medical power of attorneys. Each state sometimes has variations in regards to terms used or what exceptions can be made for residents of their state, but each state will honor a living will from a person in another state who is there temporarily. I also might add that if you move to another state as a permanent residence, it would be a good time to evaluate your current desires and wishes, and complete a new living will and medical power of attorney. You can always update either one of those documents and make changes.

MEMBER QUESTION:
Is a DNR legally binding while awaiting physician's signature?

SWANSON:
A verbal DNR will often be accepted in a health care facility, but may not be legally binding without a physician's order.

MEMBER QUESTION:
So in the absence of a hard copy, who does the medical team listen to concerning wishes?

SWANSON:
In the absence of a living will or a medical power of attorney, most states will have a list of or an order of individuals who they will turn to for determination of decision-making capability. Generally speaking, the first person on the list is a spouse, second might be either the oldest adult child or it might be a unanimous decision among the adult children. The next person, if neither of those is available or willing to serve in that capacity might be a parent, if still living, then it might go to siblings. So each state may have a different order of who they may turn to.

MEMBER QUESTION:
What if your MPA is a friend and your spouse or child challenges the legality?

SWANSON:
If you have completed a medical power of attorney form, and had it appropriately witnessed or notarized, according to the requirements of your state, then the medical personnel will always defer to the designated power of attorney. Other family members or loved ones may express their opinion, but the decision of the power of attorney will be final.

"Unfortunately, in our country, only 20% of Americans currently have advanced directives, which leaves many of us extremely vulnerable should we encounter a life-threatening illness. Don't wait. "

MEMBER QUESTION:
I wish there were a way for a doctor to help make this decision. My siblings and I have been talking about end-of-life directives but we're finding that none of us want to be the MPA for our parents. In other words, we don't want to be the one who decides to stop the support. How do you handle this?

SWANSON:
I would think that the most important thing to realize is that in a medical crisis, the health care personnel or physician will always go to the patient first to get their opinion or wishes for what they want done. If the patient is unable to communicate those wishes, then the physician can rely on the living will. They will probably discuss the options with all the family members and will seek agreement among the family members before a decision is made. So it wouldn't necessarily be one person designated as power of attorney.

My suggestion would be that you go ahead and have the patient select one of the children -- or one of the children and an alternate -- with the idea that the pressure to make the decision wouldn't be solely on them, but the children could make those decisions together amongst themselves. Only if there were disagreement would the assigned power of attorney have to make the decision. It's always better to have someone assigned as a power of attorney. The other option might be if the children are unwilling to accept that role, then the patient may choose somebody outside the family or somebody distant in the family, like a brother or cousin, or somebody else.