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Bar News - December 13, 2013

Section Tackles Advance Directives Conversation


To initiate a dialogue between medical and legal service providers about the use of advance directives, the Elder Law, Estate Planning & Probate Law Section of the NH Bar Association hosted a panel of Portsmouth Hospital professionals on Nov. 6. Sarah MacDuffie, medical director of palliative care; Carol Early, director of case management; and Christopher Lanzara, chaplain (and, as he noted, a “recovering attorney”) gave their perspectives on the use of advance directives (healthcare powers of attorney and living wills) and related best practices.

The content of advance directives in New Hampshire is largely dictated by RSA 137-J, which sets forth requirements for durable powers of attorney for healthcare and living wills and dictates the format for those documents, as well as a related disclosure statement. This statute was recently amended, and new language will take effect Jan. 1, 2014.

The healthcare providers said that in their experience, too often, patients do not have these documents when they need them, or when they do, the documents do not end up serving their purpose – to clearly express a patient’s healthcare wishes and/or delegate authority to make healthcare choices, when the patient is unable to do so directly. The aim of the panel was to discuss how this can happen and what the legal and medical communities can do make failure less common.

Panel members said advance directives are only effective if the healthcare providers actually have them. Upon being admitted and asked whether they have an advance directive on file with the hospital, patients were reported to sometimes answer, “no, but my lawyer has a copy,” which isn’t very helpful at 11 p.m. on a Saturday, or even, “my lawyer has mine, and that’s none of your business.” If there is no advance directive, the hospital in a crisis is not a good time or place to create one.

We lawyers apparently need to do a better job explaining to our clients how these documents operate (for example, pointing out that they do not have any effect until a physician determines that the client/patient has lost the capacity to make healthcare decisions) and making sure they end up in the hands of the healthcare providers. Attorneys might consider giving clients the option, in the engagement letter, of allowing the lawyer to send copies to the agents designated, the primary care physician, any treating specialist, and the local hospital.

Another key point made was that advance directives, while legally binding, are not the same as “Do Not Resuscitate” orders or similar medical orders, including the increasingly common form orders referred to as Physician Orders (or Medical Orders) for Life-Sustaining Treatment (POLSTs/MOLSTs).

POLSTs are typically used in a medical crisis for current treatment of patients with chronic, advanced, or terminal illnesses. These patients have usually had discussions with their doctors and loved ones about what medical interventions they do or do not want to have. POLSTs apply to all medical personnel, including paramedics and EMTs, who are otherwise obligated to provide every available life-sustaining treatment.

Advance directives, on the other hand, are appropriate for any client at any stage of life or health, are aimed at future treatment, and do not bind paramedics or EMTs. The power of attorney portion is the only document (other than a court order) that can delegate authority in the event of an incapacitating illness or accident. Both types of documents may inform inpatient treatment.

A possible flaw in the statutory forms, according to the panel, is that by their terms they only provide specific guidance when a patient is “near death” or “permanently unconscious,” which is only a minority of the cases in which an incapacitated patient cannot communicate his or her treatment wishes.

Doctors and family members are often left wishing there was more insight into the patient’s wishes in light of available medical interventions. There was debate among lawyers in the audience as to whether more or less detail in the instructions is useful or dangerous, but it was the shared experience of both the panel and the audience that only a small minority of patients take advantage of the power of attorney form’s invitation to provide “additional instructions.”

The panel emphasized that under most circumstances, medical interventions extending life will not be withheld without a physician’s order. Such an order may be entered pursuant to a conversation between the healthcare providers and a healthcare agent under a power of attorney – or, where there is no clear designation of authority, pursuant to a living will or discussions with next of kin, usually with the benefit of a hospital ethics committee review and, likely, a probate court guardianship order.

The panel took pains to point out that, while an advance directive may express the client’s wishes, the progress of medical technology has rendered the statutory magic words “near death” ambiguous at best. All three panelists emphasized the superior value of an ongoing conversation among patient/client, caregivers, and family members about what kind of a death the patient wants – when the opportunity still exists to have that conversation.

The question-and-answer session brought out lively discussion on the history of advance directives in New Hampshire, legislative trends in other states, and several stories from both doctors and lawyers about particularly difficult end-of-life care situations.

This NHBA section event was a huge success, and while much of the afternoon’s discussion is beyond the scope of this article, there clearly is more work to be done among lawyers, healthcare professionals, and our mutual clients on end-of-life care planning.

Donald H. Sienkiewicz is the owner of the Estate Preservation & Planning Law Office in Milford, NH. He is a graduate of the NHBA Leadership Academy.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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