“Health Care Directive Keeps You In Control”

If you have family and friends around you, talk to them and take the time to draft a Health Care Directive (or Advance Directive) so that someone who knows you and knows what is important to you is able to speak for you about your medical decisions if you can’t speak for yourself. If you’re at a loss for someone to name as an agent, don’t let that stop you from creating this important document – ask for help.  Take a moment and stay in control of what is most important to you.

Here’s a story to illustrate the issue:

Frances and her husband, Jack, had no children. Frances moved to an Assisted Living Facility after Jack passed away last summer. Neither Francis nor Jack had any living family, Frances hadn’t stayed connected to their church friends or clergy, and most of Frances’ old neighborhood friends hadn’t been able to stay in touch for one reason or another. Frances moved to XYZ Assisted Living in Nice Place, Minnesota without having created an Advance Directive or a Power of Attorney, despite her strong feelings about end-of-life care and concerns about her assets.  Frances got sick shortly after she moved there, and was unable to make her own medical decisions.

In Minnesota, without an Advance Directive or POLST (Physician Order for Life Sustaining Treatment) a physician will seek family to function as a surrogate decision-maker. Finding none, there may be an ethics committee at Frances’ facility (made of up of either representative facility personnel or, as the article below suggests, an external committee with an interdisciplinary focus), and the physician may consult them. But, at this moment, no law demands this of a physician in Minnesota, although some facilities have this internal expectation. If Frances doesn’t have a court appointed guardian to make these decisions for her, will the doctor decide?

If you were Frances, would you be satisfied with that result?

The recent article by Prof. Thaddeus Pope (Director of the Health Law Institute at Hamline University School of Law) in the New England Journal of Medicine explains the predicament and suggests a solution. You decide whether this solution goes far enough.  Below is the link to the article:

http://www.nejm.org/doi/full/10.1056/NEJMp1308197

In Minnesota, we do have surrogate decision-making rules that allow a physician to choose a surrogate decision-maker from a list of relations in a particular order if the patient has not created an Advance Directive (also referred to as a Health Care Directive, Health Care Power of Attorney, or Living Will) or a POLST.  But, does this make you comfortable? Both the Advance Directive and the POLST allow the patient, in advance, to state their choice for a surrogate decision-maker (agent) if unable to make decisions for themselves, and can include desired treatment options. If you think about it in advance, you get to decide. If you don’t, it gets a little fuzzy how decisions ought to be made for you when you’ve neither expressed your choices in advance, nor have you any family or friends that can confidently step in, knowing what you cared about and wanted under these circumstances. The Court could appoint a professional guardian, but it’s unlikely that person would be able to find out much about you. Any way you slice it, someone you don’t know will make choices for you without knowing YOU at all.

The Minnesota Supreme Court has agreed to review the decisions of both the District Court and Court of Appeals regarding a person like Frances. (I’ll be sure to post the decision when it comes down.) This real-life person, Mr. Jeffers Tschumy, was unable to make medical decisions for himself. He had no advance directive or POLST, no invested family members, no friends or clergy who knew him well, he was unlikely to regain consciousness, and under court-appointed guardianship. Although the guardian asked the Court for guidance on an end-of-life decision for Mr. Tschumy, no one actually knew Mr. Tschumy, or knew his wishes or concerns with regard to what made life worth living. The District Court said the Court should oversee the process of determining his wishes based on all the evidence available. On appeal, the Court of Appeals said the court-appointed guardian had the power to decide on his behalf. Now the Minnesota Supreme Court will weigh in and determine who will make the decisions and how these decisions should be made when there is no Advance Directive or POLST, there are no family or friends who can speak for people like Frances, there are no strict rules on involving either an Ethics Committee or Court to oversee Frances’ situation and supervise the decision process, nor is there any evidence to suggest what Frances may have wanted.

Below is a link to the recent Minnesota Court of Appeals decision regarding Jeffers J. Tschumy:

http://caselaw.findlaw.com/mn-court-of-appeals/1640236.html

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.